Glenn Gow, Petitioner v Department of Education, Professional Standards and Practices Commission, Respondent

763 A.2d 528 (Pa.Cmwlth.2000)

Facts of the Case

In December of 1993 the Big Spring School District filed charges against Glenn Gow, a principal in the district. The charges were not sustained and he was reinstated to his position. Several people filed a complaint against Gow with the Pennsylvania Department of Education.

On July 26, 1996 the Department charged Gow with immorality, incompetence, intemperance, cruelty and negligence and sought to have him professionally disciplined. On June 23, 1998 the hearing officer found one charge of intemperance and recommended that Gow be suspended for six months or until he had undergone counseling. Both Gow and the Department filed exceptions to the decision. Oral arguments were heard before the Professional Standards and Practices Commission. The Commission found that the record supported an additional finding of cruelty and determined that Gow's certificates should be revoked for an indefinite period of time.

Gow appealed the decision to Commonwealth Court on the grounds that the Commission erred in applying the wrong scope of review and making an independent review of the facts; that the Commission erred in concluding that the Department was not estopped by res judicata or collateral estoppel from pursuing the charges; that the Department's action was not filed within the statute of limitations and that the decision of the hearing officer and Commission were beyond the time limitations set forth by law; that the Chief Counsel of the Department did not review the complaint; that he was denied a fair and impartial hearing because two different hearing officers heard portions of the case; that the Department violated the procedure adopted by the Commission when it filed a brief on exceptions rather than mere exceptions; and that the hearing officer and Commission's determination of "intemperance" was inconsistent with the definition set forth in 22 Pa. Code 237.5.

Decision of the Court

On November 27, 2000 Commonwealth Court affirmed the decision of the Department of Education, Professional Standards and Practices Commission.

Basis of Decision

The court's scope of review was limited to whether Gow's constitutional rights had been violated, whether errors of law were committed and whether findings of fact were supported by substantial evidence.

Commission Review

The Commonwealth Court ruled that based on 24 P.S. 2070.16 the Commission is empowered by the legislature as the ultimate fact finder with the authority to affirm, reverse or modify a hearing officer's decision as well as to discipline accordingly. The court found that the Commission did not err in substituting its own independent judgment instead of deferring to the judgment of the hearing officer.

Res Judicata/Collateral Estoppel

Citing City of Pittsburgh v Zoning Board of Adjustment, 522 Pa.44, 559 A.2d 896, 901 (1989) and C.D.G., Inc. v Workers' Compensation Appeal Board, 702 A.2d 873, 875 (Pa.Cmwlth.1997), the court ruled that Gow did not meet the requirements for res judicata or the doctrine of collateral estoppel.

Timeliness

As Gow failed to address the issue of statute of limitations with his appeal to the Commission the issue was waived. The court also ruled that a judicial function couldn't be deemed illegal by a statute requiring a judicial action to occur with a certain amount of time. West Penn Power Co. v Pennsylvania P.U.C., 104 Pa.Cmwlth. 21, 521 A2d 75 (1987).

Procedure

The Chief Counsel is not required to review every complaint himself. A review by a member of the Chief Counsel's staff is sufficient.

Due process doesn't require that the actual determination be made by a person hearing the evidence. The basic requirements of due process are notice and opportunity to be heard. Replacing the hearing officer did not prejudice Gow. (R. V Commonwealth of Pennsylvania, Department of Public Welfare and Montgomery County Office of Children and Youth, 535 Pa. 440, 636 A.2d 142 (1994). The court found that the hearing officer was not the ultimate finder of fact in this case.

The court also found that the Department of Education did not violate procedure by filing a brief on exceptions rather than mere exceptions because the brief on exceptions contained all the exceptions brought before the Commission.

Intemperance

Intemperance is defined in 22 Pa. Code 238.5 as "a loss of self-control or self-restraint, which may result from excessive conduct"(534). Conduct that extended over a period of time may be considered excessive. The court concluded that the record revealed substantial evidence to support the hearing officer's finding of intemperance.

Prepared by Mimi Dow, July 2001