A DUI Can Be a ‘Principal’ Cause of Termination

The Third Circuit recently issued a precedential opinion determining that a school principal’s receipt of a DUI can be good cause for termination under the Pennsylvania School Code, 24 P.S. § 11-1122. In Judge v. Shikellamy Sch. Dist., 904 F.3d 122 (3d Cir. 2018), the Third Circuit reviewed a district court decision that had resolved whether an elementary school principal had voluntarily resigned or been constructively discharged from her employment following a DUI arrest. At the time of the arrest, the principal had a Blood Alcohol Content of .332 percent, well in excess of the Pennsylvania legal limit of .08. The principal did not inform the school district of her DUI arrest. Two weeks later, when the superintendent learned of the DUI arrest from a third party, the principal was given two options: submit her immediate resignation or face the filing of a formal written statement of charges for dismissal. Although the principal initially submitted her resignation voluntarily, she subsequently asserted that she was involuntarily forced to submit her resignation by the district, i.e., constructively discharged. The district maintained that the principal submitted her resignation voluntarily and that there were reasonable grounds to recommend her termination because she exhibited “immoral” behavior permitting her termination under the Pennsylvania School Code. Ultimately, the parties asked the court to determine, in part, whether the principal’s conduct amounted to immorality; a valid basis for termination. The court clarified, however, that the proper inquiry at this stage was whether the district had good cause to believe that there were valid grounds for termination based on immorality under the School Code.

For its analysis, the district court looked to the School Code, which sets forth grounds for which a tenured employee may be terminated, including conduct constituting “immorality.” The Pennsylvania Supreme Court has defined immorality as “a course of conduct as offends the morals of the community and is a bad example to the youth whose ideals a teacher is supposed to foster and elevate.” Judge v. Shikellamy Sch. Dist., 2017 U.S.Dist. LEXIS 65694 (M.D.Pa. May 1, 2017)(quoting, Horosko v. Mt. Pleasant Twp. Sch. Dist., 6 A.2d 866 (Pa. 1939)). Notwithstanding Judge’s administrative position, experience, and knowledge of the school’s policies and disciplinary procedures, Judge argued that her DUI was not a valid basis for termination. The district asserted otherwise, contending that a valid basis existed for termination because Judge’s DUI arrest and high blood alcohol content constituted immorality.

Again, the Middle District did not address whether there was a “valid basis for termination” because it held that “the ultimate absence of such grounds was more properly preserved for presentation at a pre-termination hearing,” which Judge did not attend. In reaching its conclusion, however, the Middle District reviewed the Pennsylvania Commonwealth Court decision Zelno v. Lincoln Intermediate Unit No. 12 Board of Directors, 786 A.2d 1022 (Pa.Commw. 2001). In Zelno, the court held that drinking and driving is not per se immoral, but that “certain circumstances…involving drinking and driving may constitute conduct that is immoral under the School Code.” The Middle District distinguished the matter from Zelno because the Zelno analysis was a “step too far.” The court emphasized that the inquiry in Judge fell on whether the district had good cause to believe a valid basis for termination existed. Critically, it was determined that the circumstances in the matter, consisting of Ms. Judge’s DUI charge, rendered her conduct immoral and, therefore, constituted “good cause” for termination.

The Pennsylvania Commonwealth Court recently undertook a similar analysis when it reviewed a decision issued by the Secretary of Education of the Department of Education. See Moffitt v. Tunkhannock Area Sch. Dist, 192 A.3d 1214 (Pa.Commw. Aug. 13, 2018). In Moffitt, the plaintiff, also an elementary school principal, was terminated following receipt of his second DUI while employed by the district. Unlike the plaintiff in Judge, who submitted her resignation, Moffitt challenged the district’s recommendation for termination, questioning whether there was a valid basis to terminate his employment. At the evidentiary hearing, eight witnesses testified in support of the district’s recommendation for termination. It was affirmed that Moffitt’s actions constituted immorality because it offended the morals of the community, as it was a bad example to youth. Moffitt appealed to the Secretary, who affirmed the decision of the district. The Secretary placed great weight on the uncontradicted testimony of the witnesses, which supported the conclusion that Moffitt’s DUI offenses offended the morals of the community. Once again, Moffitt appealed to the Commonwealth Court. As in the Judge opinion, the Commonwealth Court also made reference to Zelno in reviewing the immorality of an employee’s conduct when arrested for drinking and driving. The court affirmed that Moffitt’s DUI offenses were sufficient grounds for termination.

It is important for school districts and their employees to be aware of the foregoing opinions because they provide insight as to how the courts are viewing instances of drinking and driving in the context of an employee’s termination. Courts have accepted school districts’ arguments that DUIs are immoral and offensive to communities. Thus, school districts are permitted to assert that such conduct provides good cause to believe that a valid basis for termination of tenured employee exits. Lastly, the Judge opinion reinforces an employee’s obligation to undergo proper procedures when challenging the basis of termination by objecting at a pre-disciplinary hearing rather than through the immediate initiation of a civil action.

*Lara is an associate in our Harrisburg, Pennsylvania office. She can be reached at 717.651.3523 or lkbream@mdwcg.com.

_{Defense Digest, Vol. 24, No. 4, December 2018. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2018 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}