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Montemuro v. Jim Thorpe Area Sch. Dist., 2024 U.S. App. LEXIS 10553 (3d Cir. May 1, 2024) (Jordan, C.J.).

Paul Montemuro was elected President of the Jim Thorpe Area School Board (the “School Board” or “Board”). But then, a week later, the Board elected someone else. Montemuro received no notice of the change beforehand, so he sued the Board members who voted to oust him, along with the Jim Thorpe Area School District (the “District”) for depriving him of property without due process, in violation of 42 U.S.C. § 1983 and the Fourteenth Amendment. The defendant Board members and District (collectively, the “Defendants”) asserted qualified immunity, but the District Court held that Montemuro had a clearly established property right in his employment and had been deprived of that right without due process. Because Pennsylvania law clearly establishes that Montemuro had a property interest in his job as the Board President, and because we must accept as true his allegation that he was removed from office without notice, we will affirm.

Qualified immunity “shields governmental officials from suit and from liability if their conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” Mack v. Yost, 63 F.4th 211, 221 (3d Cir. 2023) (quoting Peroza-Benitez v. Smith, 994 F.3d 157, 164-65 (3d Cir. 2021)). Only the defendant Board members are eligible for qualified immunity; the District is not. See Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 145 (3d Cir. 2017) (noting that a municipal entity is not eligible for qualified immunity). There is a well-settled two-part test to determine whether government officials should receive qualified immunity. Anglemeyer v. Ammons, 92 F.4th 184, 188 (3d Cir. 2024). We ask whether the plaintiff has alleged the violation of any constitutional or statutory rights, and we further ask whether those rights were clearly established at the time of the challenged conduct, such that a reasonable official would have known that the conduct violated the plaintiff’s rights. Id. We are free to address those questions in the order we choose. Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009).

A state employee has a constitutionally protected property interest in his job if he can only be terminated for cause. Id. We look to “state law and rules” to determine whether an employee can be fired only for cause, id., and, in this instance, an answer is there: Pennsylvania law establishes that a school board president can be fired only for cause. The Pennsylvania Constitution, in § 7 of Article VI, declares, “[a]ll civil officers shall hold their offices on the condition that they behave themselves well while in office, and shall be removed on conviction of misbehavior in office or of any infamous crime.” It goes on to say that “[a]ppointed civil officers … may be removed at the pleasure of the power by which they shall have been appointed.” Id. In a case from the mid-twentieth century, Buell v. Union Township School District, the Supreme Court of Pennsylvania applied the text of § 7 and determined that school officials (in that case, a school district secretary and treasurer) are appointed civil officers. 395 Pa. 567, 150 A.2d 852, 854-55 (Pa. 1959). Further, the Court concluded that such civil officers “could be removed at the pleasure of the body which appointed [them].” Id. at 855. The Defendants lay heavy emphasis on that latter point to argue that Montemuro was terminable at will and so had no property interest in his position. But they ignore how the Pennsylvania Supreme Court has since interpreted the entirety of § 7.

Pennsylvania statutes further support that Montemuro had a property interest in his position. Section 5-514 of the Public School Code states:

The board of school directors in any school district, except as herein otherwise provided, shall after due notice, giving the reasons therefor, and after hearing if demanded, have the right at any time to remove any of its officers, employe[e]s, or appointees for incompetency, intemperance, neglect of duty, violation of any of the school laws of this Commonwealth, or other improper conduct.

24 Pa. Stat. Ann. § 5-514 (emphasis added). And the school board president is an “officer” of the school board, as is evident from § 4-404 of the Public School Code, which creates the office and is entitled “election of officers.” See Buell, 150 A.2d at 854 (assuming school secretary and treasurer qualify as “officers” under § 5-514). Thus, by its terms, § 5-514 provides that school district officers can only be fired for cause.

The District Court here rightly applied that same logic in assessing the validity of § 5-514. That section limits the firing of school board officers to circumstances involving “incompetency, intemperance, neglect of duty, violation of any of the school laws of this Commonwealth, or other improper conduct[,]” all of which are matters “bearing on the officers’ ‘behaving themselves well while in office[.]'” Burger, 923 A.2d at 1163. Thus, as instructed in Burger, § 5-514 is constitutional. See id.; see also Knox v. Bd. of Sch. Dirs. of Susquenita Sch. Dist., 585 Pa. 171, 888 A.2d 640, 648 (Pa. 2005) (“Section 5-514 offer[s] a measure of job protection to school ‘officers, employees, [and] appointees,’ setting forth the grounds for removal and the right to notice and a hearing.”); cf. Coleman v. Bd. of Ed. of Sch. Dist. of Phila., 477 Pa. 414, 383 A.2d 1275, 1280 (Pa. 1978) (holding that § 5-514 “established a clear legal right to reinstatement” for public school employee who was fired without a hearing). That, in turn, means that Montemuro had a protectible property interest in his job as School Board President because, under § 5-514, he could only be fired for cause.

“In procedural due process claims, the deprivation by state action of a constitutionally protected interest in ‘life, liberty, or property’ is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law.” Zinermon v. Burch, 494 U.S. 113, 125, 110 S. Ct. 975, 108 L. Ed. 2d 100 (1990). The United States Supreme Court has “described ‘the root requirement’ of the Due Process Clause as being ‘that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.'” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985) (quoting Boddie v. Connecticut, 401 U.S. 371, 379, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971)). “This principle requires ‘some kind of a hearing’ prior to the discharge of an employee who has a constitutionally protected property interest in his employment.” Id. (quoting Board of Regents v. Roth, 408 U.S. 564, 569-70, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972)).

At this stage in the proceedings, we accept as true all factual allegations of the complaint. Thompson, 44 F.4th at 194. Montemuro claims he was not provided due notice or a hearing before the Board elected another president a week after his own election. So, the first qualified immunity prong is satisfied: Montemuro has adequately alleged that the Board violated his property right by removing him from office without a hearing.

Finally, it is clearly established that employees with a statutory right in their employment cannot be fired without notice and a hearing. Loudermill, 470 U.S. at 542. For all of those reasons, a reasonable school board member would have known that ousting Montemuro without notice or a hearing would violate his right to due process. So, the Board does not receive qualified immunity.

For the foregoing reasons, we will affirm the order of the District Court.