Derry Township School District v. Finnegan

Opinion by

Judge MacPhail,

Derry Township School District (Appellant) appeals from an order of the Court of Common Pleas of Dauphin County which reversed the ■ decision of its Board of School Directors (Board) suspending Ruth Finnegan (Appellee) from her position as an elementary school teacher and directing that the Board reinstate Appellee with full back pay. We reverse.

Appellee was a tenured elementary school teacher¹ with ten and a half years of service with the school district. On May 30,1979, the Board voted to suspend Appellee from her position as an elementary school teacher due to a substantial decrease in student enrollment. Appellee requested and received a hearing on her suspension before the Board. The Board affirmed her suspension. An appeal was taken to the trial court, which reversed and directed the Board to reinstate Appellee. Appellant has appealed from this decision.

There is no dispute that a substantial decrease in pupil enrollment justified the Board’s decision to decrease the number of its professional employees in the elementary schools. What is at the center of this dispute is whether Appellee should have been retained in favor of discharging a temporary professional employee, the elementary school principal.²

Inasmuch as the trial court took no additional evidence, we must affirm the action of Appellant unless we. find that Appellee’s constitutional rights have been violated, that Appellant failed to act according to -law or failed to conform to procedural requirements, or- that the findings of Appellant are not supported by substantial evidence. Section 754 of the Local Agency Law, 2 Pa. C. S. §754; Platko v. Laurel Highlands School District, 49 Pa. Commonwealth Ct. 210, 410 A.2d 960 (1980). The trial court, having taken no additional evidence, was restricted to the same scope of review. That court, however, stated that inasmuch as Appellee raised no issue of error of law or violation of constitutional or procedural rights, its scope of review was limited “to whether the School District abused its discretion in making any Findings of Fact.” The court held that Appellant had abused its discretion and ordered Appellee’s reinstatement. Abuse, of discretion is not a proper criteria in the trial court’s scope of review, as we have noted. To employ this factor in reviewing the Board’s decision clearly was error on the part of the trial court. This error has been compounded in the Appellant’s statement of the question involved in this appeal as being whether the Board abused its discretion when it realigned its. staff by suspending a tenured teacher and retaining an untenured principal. The proper scope of review -is whether the Board’s action constituted an error of law.

Appellant contends that the method employed by it In determining which employees to suspend was in accordance with the law. The Superintendent reviewed both the teaching and non-teaching staff to determine where the reductions should be made and what realignments of staff were practical. Section 1125 of the Public School Code of 1949 (Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §11-1125³ requires school boards to suspend professional employees on the basis of efficiency rank determined by ratings, mandating the school board to retain professional employees on the basis of seniority where no differences in ratings are found.⁴ Where there are substantial differences in rating, “seniority shall be given consideration in accordance with principles and standards of weighting incorporated in the rating cards.” Section 1125(b) of the Code.⁵

The Superintendent recommended, inter alia, that five (5) professional employees be suspended, two in the elementary school, a music teacher in the intermediate school, and two teachers in the senior high school.

The ratings of all elementary school teachers were then examined. Out of a possible 100 rating points, Appellee received a total of 46, the lowest rating given to a teacher within the township. The next lowest rating was a 59. In accordance with its rating plan, Appellant weighted the scores. Appellee received a weighted score of 56.5; the next lowest rated score within the township was 65. Appellee was therefore the first elementary school teacher suspended by the Board.

At the hearing before the Board, Appellee alleged that the-method employed by the Board in determining which employees to suspend was unlawful. Specifically, Appellee contended that Appellant should have suspended the elementary school principal, Dr. Dale Summers, a temporary professional employee, and replace him with a Mr. Glen Zehner, a professional employee certified as an elementary school principal, allowing Appellee to be retained. The Board found this proposed realignment to be totally unreasonable as well as impractical.⁶

On appeal, the trial court reversed. Citing Welsko v. Foster Township School District, 383 Pa. 390, 119 A.2d 43 (1956), the court held that “the shifting of three employees within the elementary school which could be considered a department, since teachers- at this level are not certified by subject, but have ‘Elementary Certification’ would be considered sound and practical.” The trial court adopted Appellee ’s realignment plan in its order.

We have identified the issue presented as whether a school board commits an error of law when it realigns its staff by suspending a tenured teacher at the expense of an untenured principal. Our analysis of this issue is twofold: we must examine the rights and privileges inherent in being a tenured teacher; we will then focus upon the rights and duties of a sehool board.

Case law has provided guidance in identifying the rights and privileges of the tenured teacher. In Welsko, a school board suspended Welsko but retained five (5) other teacher's with less seniority. Welsko conceded that three of the retained teachers taught subjects for which there were no other certified teachers, but argued that the subjects taught by two of the retained teachers could be taught by other teachers in the staff and that therefore he should not have been suspended. In agreeing with Welsko, our Supreme Court stated that:

A school board has not done its duty simply because it has retained no one with less continuous years teaching the subject which the suspended teacher was qualified to teach. Where a reduction in teaching staff is called for, the Board’s first consideration should be how to retain those teachers with the longest years of service by realigning the staff so that the remaining teachers, after the reduction has been effected, can teach the subjects of those who, because of lesser seniority rights, have been suspended.

Welsko, 383 Pa. at 393, 119 A.2d at 44. Welsko does not mandate realignment outside of the teaching ranks; indeed, Welsko only stands for the proposition that the teaching staff should be realigned in order to retain those teachers with more seniority.

The lines from which the required realignment must be drawn are narrow. For example, in Tressler v. Upper Dublin School District, 30 Pa. Commonwealth Ct. 171, 373 A.2d 755 (1977), a suspended professional employee argued that instead of comparing her efficiency ratings solely within her department, the school board should have compared her ratings with all professional employees in the district. We rejected this argument:

In other words, to compare the efficiency ratings of all professional employes when declines in enrollment are localized, as they are here, and not across the board, would be fruitless. Comparison, in that instance, of all professional employes in the district with different certifications in different areas together would accomplish nothing. Even when realignment of staff is practicable so as to retain those with the most continuous years of service, Welsko, supra, comparison of all professional employes on the basis of efficiency ratings would be unnecessary. It would be done on a department by department basis depending on the plan for realignment of staff.

Id. at 179, 373 A.2d at 759-760.

Similarly,,in Sto-Rox School District v. Horgan, 68 Pa. Commonwealth Ct. 416, 427, 449 A.2d 796, 802 (1982), we held that “if suspensions can be confined to different departments within the district’s secondary school system, they can be confined to the secondary school system itself.” In our view, suspensions can be confined solely to the teaching ranks without regard to the disparate administrative area.

We believe that the trial court erred in grouping principals and teachers in the same department merely because elementary school teachers are not certified by subject. In Taggart v. Canon-McMillan Joint School System, 409 Pa. 33, 185 A.2d 332 (1962), overruled on other grounds, Mullen v. DuBois Area School District, 436 Pa. 211, 259 A.2d 877 (1969), our Supreme Court distinguished between a teacher and a principal for purposes of compensation, and in making that distinction the Court noted that the principal’s responsibilities and duties were more demanding and time consuming than that of a teacher. School principals must, in the opinion of the Board, be able to work with teachers, enforce student discipline, and carry out the Board’s policies. While a teacher certainly furthers these objectives, teachers do not have the same obligation of discharging administrative and supervisory duties.

In continuing with our analysis, we will briefly focus upon the role of the school board. Article V of the Code sets forth the duties and powers of school boards. Specifically, Section 508 of the Code, as amended, 24 P.S. §5-508 states that only a majority of the board can appoint a principal.⁷ The Board has discretion to determine the filling of staff vacancies. See Commonwealth ex rel. v. Sunbury School District, 335 Pa. 6, 6 A.2d 179 (1939).⁸ As previously noted, Section 1125 of the Code also requires the Board to retain teachers on the basis of seniority when suspensions are required.

We do not believe that Section 1125 can be read to require the retention of a tenured professional employee at the expense of suspending an elementary principal duly elected by the Board, and placing in his stead a teacher who is certified and qualified as an elementary school principal but was never elected to that post. Such a result would be inconsistent with the provisions requiring the Board to appoint, as principal, the candidate they deem qualified. The mere fact that a teacher is certified and qualified as a principal does not mean that a school board would automatically find that person to be the one they must hire as a principal. The rules of statutory construction tell us that the General Assembly is presumed not to intend a result that is absurd, impossible of execution, or unreasonable. Section 1922 of the Statutory Construction Act of 1972, 1 Pa. C. S. §1922. To require the Board to elevate to the position of principal a person whom the Board had previously considered but rejected for that position would indeed be absurd.

We conclude that Appellant did not err when it suspended Appellee. Accordingly, we will reverse the order of the court of common pleas.⁹

Order

The order of the Court of Common Pleas of Dauphin County at No. 5151 S, 1979, dated August 4, 1981, is reversed.

Judge Barry dissents.

1 Appellee was a professional employee as that term is defined in ihe Code. Section 1101(1), 24 P.S. §11-1101(1) defines “professional employee” as:

Those who are certified as teachers, supervisors, supervising principals, principals, assistant principals, vice-principals, directors of vocational education, dental hygenists, visiting teachers, home and school visitors, school counselors. child nutrition program specialists, school librarians, school secretaries, the selection of whom is on the basis of merit as determined by eligibility lists and school nurses.

2 Section 1101(3) of the Code, 24 P.S. §11-1101(3) defines temporary professional employee as “any individual who has been employed to perform, for a limited time, the duties of a newly created position or of a regular professional employee whose services have been terminated by death, resignation, suspension or removal.” Temporary professional employees are not entitled to the seniority benefits of tenured professional employees under the Code. Phillippi v. School District of Springfield Township, 28 Pa. Commonwealth Ct. 185, 367 A.2d 1133 (1977). Temporary professional employees do not have the right to be compared with professional employees on the basis of efficiency ratings nor for that matter among themselves. Tressler v. Upper Dublin School District, 30 Pa. Commonwealth Ct. 171, 373 A.2d 755 (1977).

3 Section 1125 has since been repealed by Section 1125.1 of the Code, added by the Act of November 20, 1979, P.L. 465, 24 P.S. §11-1125.1.

4 Derry Township weighted the ratings by adding the teacher’s twelve points or more constitutes a substantial difference in rating.

5 Derry Township weighted the ratings by adding the teacher’s years of seniority to his rating score.

6 The Board had originally considered Mr. Zehner for the position of elementary sehool principal but rejected his application.

7 Further, Section 1106 of the Code, as amended, 24 P.S. ill-1106 requires the Board to employ the necessary qualified professional employees.

8 The Code does not restrict the school board’s discretion. In Welsko, the Supreme Court stated that “it was not the intent of the Legislature to impose the Tenure Act so as to interfere with the control of school policy and courses of study selected by the administrative bodies.” 383 Pa. at 394, 119 A.2d at 45.

9 In light of our holding that the suspension of Appellee was proper, we will not address the remaining issues raised by the parties.