Lippert v. Grand Forks Public School Dist., 930251

• Decision Date: 23 February 1994
• Docket Number: No. 930251,930251
• Citation: 512 N.W.2d 436
• Parties: 89 Ed. Law Rep. 605 Donald LIPPERT, Appellant, v. GRAND FORKS PUBLIC SCHOOL DISTRICT, Appellee. Civ.
• Court: North Dakota Supreme Court

Page 436

512 N.W.2d 436

89 Ed. Law Rep. 605

Donald LIPPERT, Appellant, v. GRAND FORKS PUBLIC SCHOOL DISTRICT, Appellee.

Civ. No. 930251.

Supreme Court of North Dakota.

Feb. 23, 1994.

Deborah J. Carpenter, Carpenter Offices, Bismarck, for appellant; submitted on briefs.

Patrick W. Fisher, McConn, Fisher, Olson & Daley, Grand Forks, for appellee; submitted on briefs.

VANDE WALLE, Chief Justice.

Donald Lippert appealed from a district court judgment affirming a hearing officer's decision that the Grand Forks Public School District complied with the Veterans' Preference statute, section 37-19.1-02, NDCC, when it failed to employ Lippert. We affirm.

On July 1, 1992, the Special Education Unit of the Grand Forks Public School District (School District) received a grant from the North Dakota Department of Public Instruction to start a pilot project, in which the Special Education Unit would "coordinate and implement ... Technical Assistance activities for the 1992-1993 school year." Under the project, two Technical Assistance Coordinators would be hired "to provide technical assistance services to the thirty school districts within the region along with some state level compliance monitoring and special project activities." Essentially, the Coordinators would assist and monitor teachers of special education and orchestrate special education projects.

A job description for the Technical Assistance Coordinator positions was prepared by the Department of Public Instruction (DPI) and sent to Frank Miller, Director of Special Education for the School District. The job description listed the qualifications as follows: "Masters degree in special education, education or a related field preferred. Three years experience in special education or a related field." (Emphasis added).

The School District published an advertisement for the positions in a regional newspaper. The advertisement listed the duties involved in employment, the deadline for application, where to apply, and the names and phone numbers of persons to reach for more information. However, in the advertisement, the qualifications for the positions were described differently than as delineated in the job description prepared by the DPI. The advertisement read as follows: "Qualifications: Master's degree in special education, education or a related field with three years experience preferred." (Emphasis added). Thus it appeared from the newspaper advertisement that three years of experience in "special education or a related field" was not required, and that experience in general education would also be preferred.

Donald Lippert, a disabled war veteran, applied. Lippert's application included his resume, his letter of application, a letter from the Department of Veteran's Affairs confirming his status as a disabled veteran, and a copy of the report of his honorable discharge from the armed forces. Lippert's resume and letter of application indicated that he had one year of experience as a secondary school principal and six years of experience teaching Vocational Agriculture and science. Lippert has a Bachelor of Science degree in Agricultural Education and a Master's degree in Education Administration. Lippert's graduate thesis concerned the education of gifted and talented students.

The School District notified Lippert by mail that he had not been selected for an interview and that two applicants had accepted offers for the positions. The School District did not specify the reasons Lippert had not been selected.

In accordance with section 37-19.1-04, NDCC, Lippert requested the Department of Veteran's Affairs to hold an administrative hearing to determine whether or not Lippert had been given veterans' preference as required by section 37-19.1-02, NDCC. The Department of Veteran's Affairs informed the Office of Administrative Hearings on August 18, 1992, that Lippert had requested a hearing on the matter, and a hearing was scheduled for August 28, 1992. On August 26, 1992, however, Frank Miller of the School District contacted the hearing officer and protested the naming of the School District as the employer and party to the action. The hearing officer postponed the hearing until it could be determined whether the hiring authority was the School District or whether it was the Department of Public Instruction, since the DPI had granted the School District the money to finance the project and had prepared the job description. The hearing was eventually held on November 19, 1992, and the School District stipulated that it was to be considered the hiring authority.

The hearing officer determined that veterans' preference was generally applicable to the Technical Assistance Coordinator positions, ¹ but that the School District was not required to afford Lippert a preference because Lippert did not meet the required qualifications for the position. Lippert appealed the decision to the district court, which affirmed.

Lippert asserts that he was qualified for the positions, that the School District failed to investigate his qualifications as required under section 37-19.1-02, NDCC, and that the hearing officer erred in failing to find accordingly. Lippert also contends that the hearing officer erred by permitting the School District to challenge Lippert's qualifications for the positions at the hearing and that Lippert was prejudiced by having the hearing delayed beyond the fifteen-day time limit prescribed by statute.

Our review of agency determinations, including the decision of a hearing officer, is governed by chapter 28-32. Under that chapter, we will affirm the agency decision if the findings of fact are supported by a preponderance of the evidence, the conclusions of law are supported by the findings of fact, the decision is supported by the conclusions of law, and the decision is in accordance with the law. NDCC Secs. 28-32-19, 28-32-21; Dyer v. N.D. Dept. of Human Services, 498 N.W.2d 160 (N.D.1993). We look only to the decision of the hearing officer and to the evidence in the record; we do not review the findings and conclusions of the district court. S.N.S. v. Dept. of Human Services, 474 N.W.2d 717 (N.D.1991).

I

Both parties agree that the School District does not hire employees under an "established personnel system", as defined in subsection (4) of section 37-19.1-02, NDCC. ² See City of Bismarck v. Santineau, 509 N.W.2d 56 (N.D.1993); Dyer, supra. Subsection (2), which applies to hiring authorities without an established personnel system, thus controls this matter. NDCC Sec. 37-19.1-02. Subsection (2) provides, in relevant part:

"the officer, board, or person whose duty it is to appoint or employ a person to fill the available position shall, ... investigate the qualifications of the veteran. If the veteran is found to possess the qualifications required for the position applied for, whether educational or by way of prior experience, and is physically and mentally able to perform the duties of the position applied for, the officer, board, or person shall appoint or employ the veteran."

Lippert contends that the hearing officer erred in finding that Lippert did not possess the requisite qualifications for the positions. Lippert maintains that the qualifications were identified in the newspaper advertisement, despite the job description and testimony of Frank Miller that three years of experience in "special education or a related field" is required.

In Santineau, supra, we stated that considerable deference must be afforded the hiring authority in its determination of whether and to what extent an applicant possesses the meritorious qualities required for the position. We believe the same deference is due the School District and the DPI in their determination of the qualifications required for the Technical Assistance positions. There was considerable evidence at the hearing that the qualifications listed in the newspaper advertisement were not in accord with the required qualifications for the position as envisioned by the School District and the DPI; the record supports the hearing officer's finding that the qualifications for the positions were those enumerated in the job description rather than those in the newspaper advertisement. The record supports the hearing officer's finding that the positions required three years of experience in special education or a related field.

Lippert contends that he did have three years of experience in "a related field". To wit, Lippert had six years of secondary teaching experience, one year of experience as a principal, and the experience gained in researching and writing his graduate thesis on gifted and talented students. Representatives of the School District testified, however, that "a related field" did not include general secondary education, but rather included only those fields in which a person could be certified by the DPI in special education. According to the testimony of Frank Miller, those fields may include physical therapy, occupational therapy, speech therapy, school psychology and social work. Also, the job description distinguished education from "a related field" by providing, "Masters degree in...