Although a Superintendent did not issue an annual rating for several educators for each of two years, are those educators still entitled to “professional employee” status after the second year?
12 June, 2021 by
Thomas W. Bailey
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Background: Carrol Bittner (Ms. Bittner) began teaching September, 1971.  She was certified by Pennsylvania Department of Education (PDE) as an early childhood and elementary education instructor.  She taught reading full time, seven hours a day and five days per week at Jersey Shore Area School District (District).  Ms. Bittner taught elementary students in the District’s federally funded, special remedial reading program.

 The District treated Ms. Bittner and other instructors within the federally funded, reading program differently than the other teachers hired in 1971.  The District did not offer Ms. Bittner a written contract, nor were she and her fellow reading program peers recognized as teachers in the District’s Board of Directors (Board) program printed for that same meeting.  Each of the names of the other new hires was printed.

 Ms. Bittner was paid $35 daily.  The other, non-federally funded new hires were paid an annual salary.

 In May, 1972 PDE published a new policy, affecting instructors such as Ms. Bittner, in the School Administrators' Handbook, Major Code 82-000, Page Code 82-100 (May 31, 1972).  PDE required the Districts to grant tenure to all employees regardless of funding source, such as federally funded, reading programs.

 In September, 1972 the Board treated Ms. Bittner and her fellow reading teachers the same as the year before.  The District offered written contracts and publicly  recognized the non-reading program teachers.  Ms. Bittner and the reading teachers were not offered written contracts, nor did the Board’s minutes reflect her employment status.  Ms. Bittner’s hours were reduced to four and one-half each day and she worked five days a week.  Ms. Bittner taught the entire year and yet the District did not file her teacher rating at years end.

 In September, 1973, Ms. Bittner was informed she no longer had a teaching position with the District.  The District refused her request for a termination hearing.  Ms. Bittner appealed the the District’s termination of her employment and refusal to grant her a hearing to the Secretary of PDE.

 Following a hearing, the Secretary found that Ms.Bittner had taught for two years and had only satisfactory ratings.  As a result, the Secretary ruled Ms. Bittner was entitled to tenure status and reinstatement.  The District appealed to the Commonwealth Court.  This Court determined Ms. Bittner did not have a written contract approved by over half of the Board and was, therefore, not entitled to tenure status.  Ms. Bittner and PDE appealed separately to the Pennsylvania Supreme Court.

 

Issues on appeal: Does the fact that the Board did not vote to approve a written contract for Ms. Bittner prevent her from obtaining professional employee status?  Did her reduction of hours, during the second school year, prevent her from obtaining professional employee status?

 

Pa Supreme Court’s Opinion: The Court relied upon an earlier decision where two school nurses found themselves is circumstances similar to Ms. Bittner.  Although their Superintendent did not issue them annual ratings for each of two years, they were entitled to “professional employee” status.  The burden to issue the annual ratings is upon the district according to Public School Code Section 1108(b).  The school nurse case was Elias v. Board of Directors, 421 Pa 260, 218 A2d 738 (1966). 

           "The burden of complying with the statute rests with the school

boards; should they fail to conduct their business as required, the consequences ought to lie at their door, not at the door of their

victims. They must not be permitted to advantage themselves of their own failures to the detriment of their employees." Mullen v. DuBois Area School District, 436 Pa. 211, 217, 259 A.2d 877, 880-81 (1969) (rejecting school board's argument that "temporary professional employee" contract is invalid for want of school board minutes approving it).  Com. v. Jersey Shore Area SD at page 1336.

 Concerning the second issue, as long as Ms. Bittner devoted half of her time to teaching or direct educational activities, the Court reasoned she was a teacher entitled to “professional employee” status.  The Court found no minimum number of hours required.

 The Court agreed with PDE, that originally Ms. Bittner was a temporary professional employee.  However, at the time of her termination, Ms. Bittner was a professional employee with tenure.  This tenure entitled her to a termination hearing.  The Court reversed the Commonwealth Court decision.

 

Importance:  First off, Ms. Bittner was a glutton for punishment, but ultimately successful.  The School District and Commonwealth Court ruled against her, the Secretary of PDE and PA Supreme Court agreed with her complaints.

 Second, the importance of school districts following PDE’s School Administrators’ Handbook was evident and could have saved everyone involved the time and expense of litigating these issues before three different bodies.

 Finally, I must give credit where credit is due.  This is the first educator misconduct case I know of where PDE filed an appeal of a Commonwealth Court opinion in conjunction with an educator.  PDE helped Ms. Bittner prevail over the school district!

 A court may allow a non-party to join an appeal.  In this case, the PA Supreme Court allowed the PA School Boards Association permission to participate in these proceedings as an amicus curiae or “friend of the court.”

 

Commonwealth of Pennsylvania Department of Education and Carol Bittner v. Jersey Shore Area School District, 481 PA 356, 392 A2d 1331 ( PA Supreme Court 1978)

 

William A Hebe, Wellsboro for Ms. Bittner

Edward Miller, Asst. Attorney General, Donna W. Weldon, Harrisburg for Pennsylvania Department of Education

Clyde E. Carpenter, Jr., Jersey Shore, Charles J. McKelvey, Williamsport, for Jersey Shore Area School District

Michael I. Levin, William Fearen, Harrisburg, for amicus curiae Pennsylvania School Boards Association
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