Brickhouse v. Spring Ford Area School Dist.

• Decision Date: 25 June 1993
• Parties: , 83 Ed. Law Rep. 275 G. Gordon BRICKHOUSE, Appellant, v. SPRING FORD AREA SCHOOL DISTRICT, Appellee.
• Court: Pennsylvania Commonwealth Court

Page 711

625 A.2d 711

155 Pa.Cmwlth. 402, 83 Ed. Law Rep. 275

G. Gordon BRICKHOUSE, Appellant, v. SPRING FORD AREA SCHOOL DISTRICT, Appellee.

Commonwealth Court of Pennsylvania.

Argued Feb. 2, 1993.

Decided May 3, 1993.

Reargument Denied June 25, 1993.

Mark L. Tunnell, for appellant.

Jeffrey H. Quinn, for appellee.

Before McGINLEY and KELLEY, JJ., and KELTON, Senior Judge.

McGINLEY, Judge.

G. Gordon Brickhouse (Applicant) appeals from an order of the Court of Common Pleas of Montgomery County (common pleas court) that affirmed the determination of the Spring-Ford School District (District) School Board (School Board) that the District's decision not to hire Applicant for an open secondary social studies teaching position did not violate the Act commonly known as the "Veterans' Preference Act" (Act), 51 Pa.C.S. §§ 7101 through 7109. Applicant is a Vietnam veteran who is a "soldier" within the meaning of Section 7101 of the Act, 51 Pa.C.S. § 7101. ¹ He possesses a bachelor's degree and a Pennsylvania teaching certificate in social studies.

The position came open near the end of the 1989-1990 school year. Pursuant to the contract with the teacher's union, the District advertised the position internally in June of 1990, to determine if any teachers then in the District wished to transfer to that position. If so, the vacancy would then exist for the position from which that teacher transferred. The posted deadline for applications was July 15, 1990. The District received several applications, including one from Andrew Ruppert (Ruppert), who was a substitute in the District since the end of January and who is not a veteran. The substitute position resulted from another teacher's sabbatical in the spring of 1990. That position was advertised externally, and Ruppert was selected from among eight or nine applicants.

Applicant learned of the social studies opening through a telephone call to the District, and he immediately submitted an application on July 10, 1990, which included a resume, a college transcript, a copy of a book he had written and other materials. His application did not include a required Act 34 Criminal History Report (Act 34 form), because that takes some time to be processed by the Commonwealth. Applicant testified that he was given an extension of time to submit the Act 34 form. The School District's Superintendent, Dr. Edwin D. Coyle (Superintendent), testified that if an application aroused interest but was incomplete in some respect, the practice was to notify the applicant to turn in what was missing. Applicant's college transcript includes a number of "C" grades and an overall grade point average of 2.78 during his final two years, when he attended West Chester State College. His resume shows that in the eleven years since his graduation he had one year's experience teaching social studies, with other work as a paralegal, bookkeeper, manager of a trailer park, manager of a hunting lodge and teacher in reform and other special schools. He resided at different times in Pennsylvania, Florida and South Dakota.

On or about July 2, 1990, shortly after the School Board adopted a budget allowing for the open position, an administrative committee chaired by the Superintendent and also including the Assistant Superintendent for Instruction and the Senior High School Principal decided to recommend to the School Board that Ruppert be hired. Ruppert had excellent academic credentials (3.78 grade point average and awards for his work at Albright College) and very favorable evaluations as a long-term substitute teacher.

Applicant went to the school on July 23, 1990. At that time he had an impromptu meeting with the Superintendent and raised the issue of veterans' preference in hiring for the teaching position. The Superintendent told Applicant that he did not believe that the District was required to give such a preference. At its next regular meeting in August of 1990, the School Board decided to hire Ruppert. Applicant filed his action for declaratory judgment on November 16, 1990.

While that action was pending, Applicant agreed to participate in a hearing before the School Board on the matter, which took place on July 8, 1991. ² The School Board rendered a decision on August 19, 1991. It determined that (1) Applicant's application was never formally completed; (2) if it was, the vacancy had been filled by the time the District received the application; and (3) even if the application was complete and a vacancy existed, the District did not violate the Act by not hiring Applicant. Applicant sought to bring his action in common pleas court to trial, and the District moved to have the court determine the nature of that proceeding, i.e., whether appellate or de novo. By order of January 1, 1992, the common pleas court determined that the proceeding was appellate review of the School Board decision, pursuant to Section 754 of the Local Agency Law, 2 Pa.C.S. § 754. ³ The court granted leave to appeal the School Board's decision nunc pro tunc, and it dismissed the complaint requesting declaratory judgment. The court reviewed the decision of the School Board without taking additional evidence and affirmed. Applicant appeals.

Applicant frames the questions presented as whether the trial court erred in affirming the School Board's determination that the position had been filled at the time Applicant applied and whether the court and the School Board erred in concluding that Section 7104(a) of the Act, 51 Pa.C.S. § 7104(a), does not mandate that a soldier with the necessary minimum qualifications be hired. Where the common pleas court took no additional evidence, this court also is required to affirm the adjudication of the local agency unless we conclude that constitutional rights were violated, that an error of law was committed or that necessary findings of fact are not supported by substantial evidence in the record. Morelli v. Fire Code Board of Appeals of Whiteland Township, 126 Pa. Commonwealth Ct. 202, 559 A.2d 90 (1989).

The School Board's determination that no vacancy existed when Applicant applied rests on its Finding of Fact No. 11, which notes the decision of the administrative committee on July 2, 1990, to recommend Ruppert for the position. ⁴ Although the fact of the administrative committee's decision is incontrovertible, the question here is one of law--whether that decision had the legal effect of "filling" the vacancy before the advertised deadline and before the receipt of applications from Applicant and others. Applicant argues that the existence of the advertised deadline means that he and others who applied before that date went into the pool of eligible candidates. He contends that as a matter of law the School Board, not the administrative committee, is the employer, and the record shows that the School Board did not hire Ruppert until it accepted the administrative committee's recommendation at its meeting on August 19, 1990.

We agree with Applicant. The administrative committee did not purport to make other than a "recommendation" to the School Board, and a recommendation may be rejected. Despite the administrative committee's decision to make a particular recommendation before the end of the advertised period for receiving applications, the vacancy was not filled until the School Board acted in August. The position was still open when Applicant turned in his substantially complete application on July 10.

The heart of this case involves Section 7104 of the Act in the context of teacher hiring. That Section provides:

(a) Non-civil service.--Whenever any soldier possesses the requisite qualifications and is eligible to appointment to or to promotion in a public position, where no such civil service examination ⁵ is required, the appointing power in making an appointment or promotion to a public position shall give preference to such soldier.

(b) Name on civil service list.--Whenever any soldier possesses the requisite qualifications, and his name appears on any eligible or promotional list, certified or furnished as the result of any such civil service examination, the appointing or promoting power in making an appointment or promotion to a public position shall give preference to such soldier, notwithstanding that his name does not stand highest on the eligible or promotional list.

(c) Name not on the civil service list.--In making an appointment or promotion to public office where a civil service examination is required, the appointing authority or promotional power may give preference to any soldier, who has passed the required examination for appointment or promotion to such position, and possesses the requisite qualifications, although his name does not appear on the eligible or promotional list certified or furnished to the appointing or promoting power.

The parties agree that this case falls under Section 7104(a), because there was no civil service examination and no list of eligibles.

Applicant contends that the language of Section 7104(a) that the appointing power "shall give preference" to the soldier is mandatory, not permissive. He notes the long history of veterans' preference statutes in Pennsylvania, dating from the Act of May 19, 1887, P.L. 132, as amended, formerly 51 P.S. § 481, repealed by Section 9 of the Act of May 22, 1945, P.L. 837. The Applicant has referred us to Commonwealth ex rel. Graham v. Schmid, 333 Pa. 568, 3 A.2d 701 (1939), where the Supreme Court recited that it is reasonable to base selection for public appointment on status as a veteran, to give veterans credit for the discipline, experience and service represented by their military activity, which factors are conducive to the better performance of public duties, where discipline, loyalty and public spirit are essential, and to give consideration for the great service of participating in wars for the preservation of their country. ⁶

Applicant also cites Eggleston v....