M. A. Lukacs v. Plum Boro School District, et al. (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Mark A. Lukacs, Appellant v. Plum Borough School District, Dawn Caruso, Kevin Dowdell, Linda Eazor, Dan Lioy, Jeffrey Matthews, Tom McCough, Paul Olijar, Kris Traficanti and Loretta White BEFORE: : : : : : : : : : : : No. 1846 C.D. 2007 Argued: May 6, 2008 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE KELLEY FILED: July 16, 2008 Mark A. Lukacs (Lukacs) appeals from the July 11, 2007 order of the Court of Common Pleas of Allegheny County (trial court) granting the preliminary objections filed by the Plum Borough School District (District) and its School Board of Directors1 (School Board) and dismissing with prejudice Lukacs 1 The individual directors are Dawn Caruso, Kevin Dowdell, Linda Eazor, Dan Lioy, Jeffrey Matthews, Tom McCough, Paul Olijar, Kris Traficanti, and Loretta White. complaint against the District and the individual School Board members.2 We affirm. The facts of this matter, as alleged in Lukacs complaint, are as follows. Lukacs was employed by the District as its Director of Business Affairs beginning in April 2000. On October 5, 2006, Lukacs was administratively suspended without pay by the District s assistant superintendent Lillian Nacarrati. At that time, Lukacs was served with a Statement of Charges and Notice of Opportunity for Formal Hearing pursuant to Section 1089 of the Public School Code of 1949.3 Therein, Lukacs was charged by the District s Administration with 2 By order of April 24, 2008, this Court ordered that this appeal be listed for argument seriately with a related appeal involving the same parties which is docketed in this Court at 1939 C.D. 2007. 3 Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §10-1089. Section 1089 governs the position of business administrator and provides as follows: (a) A governing board of a school entity may employ or continue to employ a person serving in the function of business administrator of the school entity who shall perform such duties as the governing board may determine, including, but not limited to, the business responsibilities specified in section 433 of this act. (b) The governing board may enter into a written employment agreement with a person hired after the effective date of this section to serve as a business administrator or into an amended or renewed agreement with a person serving in that function as of such effective date. The agreement may define the period of employment, salary, benefits, other related matters of employment and provisions of renewal and termination of the agreement. (c) Unless otherwise specified in an employment agreement, the governing board shall, after due notice, giving the reasons therefor, and after hearing if demanded, have the right at any time to remove a business administrator for incompetency, intemperance, neglect of duty, violation of any of the school laws of this Commonwealth or other improper conduct. (Continued....) 2. immorality, incompetency, neglect of duty, violation of school laws and other improper conduct. Lukacs was also notified that he had a right to a formal hearing before the School Board. Lukacs requested a public hearing and hearings were held by the School Board on January 20, 2007, February 19, 2007 and February 26, 2007. During the hearings, witnesses presented testimony and exhibits were received into evidence. By letters dated March 30, 2007 and April 4, 2007 to the District s legal counsel, Lukacs demanded that any deliberations and discussion regarding his appeal and employment status be conducted publicly pursuant to Section 708(a)(1) of the Sunshine Act.4 By letter dated April 13, 2007, the District s legal (d) A person serving as business administrator shall not be a member of the governing board of the school entity. (e) A person serving as business administrator may serve as secretary or treasurer of the governing board. (f) For purposes of this section, the term "school entity" shall mean a school district, intermediate unit or an area vocational-technical school. The term "governing board" shall mean the board of directors or joint board of such entity. 4 65 Pa.C.S. §708(a)(1). Section 708(a)(1) governs executive sessions and provides as follows: (a) PURPOSE.-- An agency may hold an executive session for one or more of the following reasons: (1) To discuss any matter involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of performance, promotion or disciplining of any specific prospective public officer or employee or current public officer or employee employed or appointed by the agency, or former public officer or employee, provided, however, that the individual employees or appointees whose rights could be adversely affected may request, in writing, that the matter or matters be discussed at an open meeting. The agency's decision to discuss such matters in executive session shall not serve to (Continued....) 3. counsel responded by advising that the School Board would not deliberate and discuss Lukacs appeal and employment status in public pursuant to Sections 708(a)(4)5 and 708(a)(5)6 of the Sunshine Act. The School Board conducted unannounced executive sessions on personnel matters on April 2, 2007, April 11, 2007 and April 16, 2007 and conducted an impromptu executive session on April 25, 2007. Thereafter, on April 25, 2007, the School Board voted publicly to terminate Lukacs and approved certain findings of fact and conclusions of law drafted by the School Board s legal counsel. adversely affect the due process rights granted by law, including those granted by Title 2 (relating to administrative law and procedure). The provisions of this paragraph shall not apply to any meeting involving the appointment or selection of any person to fill a vacancy in any elected office. 5 65 Pa.C.S. §708(a)(4). Section 708(a)(4) provides as follows: (a) PURPOSE.-- An agency may hold an executive session of one or more of the following reasons: .... (4) To consult with its attorney or other professional advisor regarding information or strategy in connection with litigation or with issues on which identifiable complaints are expected to be filed. 6 65 Pa.C.S. §708(a)(5). Section 708(a)(5) provides as follows: (a) PURPOSE.-- An agency may hold an executive session of one or more of the following reasons: .... (5) To review and discuss agency business which, if conducted in public, would violate a lawful privilege or lead to the disclosure of information or confidentiality protected by law, including matters related to the initiation and conduct of investigations of possible or certain violations of the law and quasi-judicial deliberations. 4. On or about May 9, 2007, Lukacs filed a complaint in civil action against the District and the individual School Board members. Therein, Lukacs alleges, based on the foregoing facts as set forth in his complaint, that the District and the School Board violated the Sunshine Act by: (1) administratively suspending Lukacs and taking away his pay without taking official action at a public meeting; (2) filing and/or initiating disciplinary charges against him without taking official action at a public meeting; (3) adversely affecting his employment and property rights without taking official action at a public meeting prior to April 25, 2007; (4) failing and refusing to publicly debate, deliberate and discuss his appeal, his employment status, the findings of fact and conclusions of law, and the decision on his appeal after Lukacs demanded in writing that the same be conducted publicly; (5) conducting executive sessions on April 2, 2007, April 11, 2007, April 16, 2007 and April 25, 2007 in violation of the procedures required to be followed by Section 708(b) 7; (6) discussing, deliberating, and debating Lukacs appeal, his employment status, the findings of fact and 7 65 Pa.C.S. §708(b). Section 708(b) provides as follows: (b) PROCEDURE. The executive session may be held during an open meeting or at the conclusion of an open meeting or may be announced for a future time. The reason for holding the executive session must be announced at the open meeting occurring immediately prior or subsequent to the executive session. If the executive session is not announced for a future specific time, members of the agency shall be notified 24 hours in advance of the time of the convening of the meeting specifying the date, time, location and purpose of the executive session. 5. conclusions of law, and the decision on his appeal during executive sessions held on April 11, 2007, April 16, 2007 and April 25, 2007, without notice to Lukacs and after Lukacs demanded, in writing, that the same be conducted publicly pursuant to Section 708(a)(1); and (7) approving findings of fact and conclusions of law that were neither read in public nor available to the School Board members prior to their vote at the April 25, 2007 public meeting nor made available to the public in attendance at the public meeting, including Lukacs and his counsel, and then issuing those findings and conclusions after the April 25, 2007 public meeting via a letter from the District s counsel to Lukacs counsel dated April 26, 2007. As a result, Lukacs requested that the trial court enter an order: (1) invalidating, voiding and setting aside all action taken by the School Board and the District against Lukacs from October 5, 2006 to the present in violation of the Sunshine Act; (2) requiring the District to pay Lukacs his salary and benefits for the period October 5, 2006 until the present and continuing until Lukacs is properly terminated in accordance with the requirements of the Sunshine Act; (3) requiring the School Board and the District to pay Lukacs reasonable attorney s fees and costs of litigation; (4) requiring the School Board members to pay fines as authorized by the Sunshine Act; and (5) such other relief as the court may determine is necessary and appropriate including injunctive relief. The District and School Board timely filed preliminary objections to the complaint requesting the trial court to dismiss the complaint because there were no violations of the Sunshine Act. preliminary objections. Upon review, the trial court granted the The trial court determined that the assistant 6. superintendent, as Lukacs supervisor, had the authority to suspend Lukacs. The trial court determined further that the charges were properly issued by the Administration as part of its function. The trial court determined that the School Board properly declined to deliberate in public pursuant to Section 708(a)(5) of the Sunshine Act as the deliberations were within the quasi-judicial function of the School Board. Therefore, the trial court dismissed the complaint for failure to state a cause of action. This appeal followed.8 In support of this appeal, Lukacs first argues that under Section 708(a)(1), the School Board was required to hold any deliberations regarding his appeal, employment status, and decision regarding his employment in public once he requested in writing that the matters be discussed at an open meeting. The School Board, relying Section 708(a)(5), argues that since it was acting in a quasijudicial manner, it was not required to honor Lukacs request that deliberations be public. In addition, the School Board and the District point out that Section 708(a)(1) does not require that the School Board comply with a request to have public deliberations. Lukacs argues that his request pursuant to Section 708(a)(1) for public deliberations trumped the quasi-judicial exception found in Section 708(a)(5) of the Sunshine Act. Section 703 of the Sunshine Act defines deliberation as [t]he discussion of agency business held for the purpose of making a decision. 65 8 Our scope of review of an appeal from an order sustaining preliminary objections in the nature of a demurrer is to determine whether on the facts alleged in the complaint, the law states with certainty that no recovery is possible. Sontag v. Ward, 789 A.2d 778 (Pa. Cmwlth. 2001), petition for allowance of appeal denied, 569 Pa. 713, 805 A.2d 528 (2002). In making this review, we must accept as true all well-pled allegations of material fact averred in the complaint, as well as all inferences reasonably deducible therefrom. Id. 7. Pa.C.S. §703. As noted herein, Section 708(a)(1) provides that an agency may hold an executive session: To discuss any matter involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of performance, promotion or disciplining of any specific prospective public officer or employee or current public officer or employee employed or appointed by the agency, or former public officer or employee, provided, however, that the individual employees or appointees whose rights could be adversely affected may request, in writing, that the matter or matters be discussed at an open meeting. The agency's decision to discuss such matters in executive session shall not serve to adversely affect the due process rights granted by law, including those granted by Title 2 (relating to administrative law and procedure). The provisions of this paragraph shall not apply to any meeting involving the appointment or selection of any person to fill a vacancy in any elected office. 65 Pa.C.S. §708(a)(1). Section 708(a)(5) provides that an agency may hold an executive session: To review and discuss agency business which, if conducted in public, would violate a lawful privilege or lead to the disclosure of information or confidentiality protected by law, including matters related to the initiation and conduct of investigations of possible or certain violations of the law and quasi-judicial deliberations. 65 Pa.C.S. §708(a)(5). As correctly pointed out by Lukacs, statutes in pari materia are to be construed together whenever possible as one statute, and unless an irreconcilable conflict exists, effect is to be given to all provisions pursuant to Section 1932 of the Statutory Construction Act of 1972, 1 Pa.C.S. §1932. Hamilton v. UnionvilleChadds Ford School District, 552 Pa. 245, 714 A.2d 1012 (1998). However, we 8. disagree that Lukacs request for public discussion and deliberation regarding his future employment trumped the quasi-judicial deliberation exception found in Section 708(a)(5).9 The rules of statutory construction also require that when general and specific sections of statutes conflict, the two shall be construed so as to give effect to both. See Section 1933 of the Statutory Construction Act of 1972, 1 Pa.C.S. §1933; Dunn v. Zoning Hearing Board, 573 A.2d 634 (Pa. Cmwlth.), petition for allowance of appeal denied, 527 Pa. 654, 593 A.2d 425 (1990). While the language of Section 708(a)(1) states that an individual employee whose rights could be adversely affected may request, in writing, that the matter be discussed at an open meeting, Section 708(a)(1) does not mandate that deliberations must be public. Section 708(a)(1) does not specifically refer to deliberations, a term that is defined in Section 703 as discussions of agency business held for the purpose of making a decision. Moreover, Section 708(a)(1) does not mandate that the agency grant a request for public discussion. Section 708(a)(5), on the other hand, specifically refers to quasijudicial deliberations . Thus, if this Court would hold that a request pursuant to the general language of Section 708(a)(1) for an open meeting by an adversely 9 We note that it is undisputed that the School Board did conduct public hearings on Lukacs employment situation prior to taking official action at a public meeting on April 25, 2007 by voting to terminate Lukacs. Official action is defined in Section 703 of the Sunshine Act as: (1) Recommendations made by an agency pursuant to statute, ordinance or executive order. (2) The establishment of policy by an agency. (3) The decisions on agency business made by an agency. (4) The vote taken by any agency on any motion, proposal, resolution, rule, regulation, ordinance, report or order. 9. affected employee mandates that any and all deliberations be public, the language of Section 708(a)(5) would be eviscerated. Pursuant to the Statutory Construction Act of 1972, the specific must control the general; therefore, we reject Lukacs contention that the School Board was mandated to conduct its deliberations of his employment situation in public. Lukacs next argues that the trial court erred by concluding that the Public School Code of 1949 gives an assistant superintendent the authority to administratively suspend the District s business administrator. Lukacs contends, without citation to any support in the Public School Code, that the assistant superintendent had no authority to suspend him in the first place without the School Board first recording a public vote, as his position was on the same level as the assistant superintendent. In response, the District contends that the assistant superintendent was properly delegated the responsibility to investigate the operations and conduct of the business office and that no formal action by the School Board is necessary prior to the filing of a statement of charges and notice of a formal hearing request. Section 1089 of the Public School Code of 1949 governs business administrators. 24 P.S. §10-1089. Pursuant to Section 1089(c), the governing board of a school district, after due notice giving the business manager reasons therefore, and after a hearing if one is demanded, has the right at any time to remove a business administrator for incompetency, intemperance, neglect of duty, violation of any of this Commonwealth s school laws or other improper conduct. 24 P.S. §10-1089(c). There is no requirement in this section mandating that the School Board have a public vote before giving Lukacs due notice of the reasons why he was being removed as business administrator. A business administrator only has a right to a hearing if he or she demands one after due notice is given of 10. the reasons for his or her removal. Nor is there any requirement that prohibited Lukacs suspension as business administrator pending formal action by the School Board on the charges brought against him. We also reject Lukacs contention that the assistant superintendent had no authority to investigate and then suspend him as business administrator because they were on the same level in terms of employment. The provisions of the Public School Code of 1949 governing superintendents and assistant superintendent are separate from the provision governing business administrators. Therein, there is nothing which indicates that a business administrator and assistant superintendent are on the same level. Pursuant to Section 1082 of the Public School Code of 1949, an assistant superintendent shall perform such duties as may be assigned them by the boards of school directors or by the district superintendents. 24 P.S. §10-1082. Clearly, in this matter, as indicated in the letter from the assistant superintendent to Lukacs suspending him from his position, the assistant superintendent was authorized to conduct an informal hearing, review the matter, and make a recommendation to the School Board that Lukacs be terminated, and suspend Lukacs pending the conclusion of any formal hearing. Complaint, Reproduced Record (R.R.) at 12a. See Exhibit A to We note that a copy of the Statement of Charges and Notice of Opportunity for a Formal Hearing was attached to the letter. Moreover, it was not until after the School Board had conducted public hearings and voted publicly at the April 25, 2007 hearing, that Lukacs was formally terminated from his employment. In other words, there is nothing in the Public School Code of 1949 which prohibits a school district or a school board from appointing an assistant superintendent to conduct an 11. investigation with regard to whether a business administrator should be removed from employment. The trial court s order is affirmed. _________________________________ JAMES R. KELLEY, Senior Judge 12. IN THE COMMONWEALTH COURT OF PENNSYLVANIA Mark A. Lukacs, Appellant v. Plum Borough School District, Dawn Caruso, Kevin Dowdell, Linda Eazor, Dan Lioy, Jeffrey Matthews, Tom McCough, Paul Olijar, Kris Traficanti and Loretta White : : : : : : : : : : : No. 1846 C.D. 2007 ORDER AND NOW, this 16th day of July, 2008, the order of the Court of Common Pleas of Allegheny County, dated July 11, 2007, at No. GD 07-009793, is affirmed. _________________________________ JAMES R. KELLEY, Senior Judge

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