Gibbons v. New Castle Area School District

Dissenting Opinion by

Judge Palladino:

I dissent.

The result of the majority’s decision is that, whenever a school district realigns its istaff, -senior teachers and administrators will have the right to choose to fill any position for which they are certificated and which is being filled by an employee with less seniority. The essence of this result is that whenever a realignment is necessary, employees with greater seniority will be able to “bump” less senior employees in order to suit the senior employee’s desires without any regard to the overall impact on the school district or the other professional staff. Furthermore, the school district will be powerless to take into consideration other legitimate concerns, such as the amount of experience a teacher may have in teaching a given subject, or to insure that the least senior employees of the district are the ones who will be suspended where a staff reduction is necessary. It is not difficult to imagine a situation where a more senior teacher, who is certificated in two areas and whose position is abolished during a realignment, decides to “bump” a less senior teacher in the senior teacher’s second *40area of certification. If the less senior teacher is only certificated in one area hut has more seniority then teachers in other areas, the less senior teacher with a single certification will he suspended even though there are other professional employees with less seniority who will be retained.

I do not believe that this is the result intended by the legislature when it enacted Section 1125.1(c),1 nor do I believe that it is consistent with existing law. The Pennsylvania Supreme Court, in Welsko v. School District of the Township of Foster, 383 Pa. 390, 119 A.2d 43 (1956), although applying the predecessor of Section 1125.1,2 clearly enunciated the competing concerns which face a school district when realigning professional employees. The Welsko Court stated:

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.

Id. at 393, 119 A.2d at 44.

The Welsko Court also recognized, however, that in realigning professional staff a school board is confronted with many difficulties in setting up curricula and assigning teaching personnel. The Court stated that the legislature did not intend the Teachers’ Ten*41ure Act “to interfere with the control of school policies and courses of study selected by the administrative bodies. ’ ’ Id. at 393-394, 119 A.2d at 44-45.

The eases decided subsequent to Welsho have continued to struggle with the conflict between placing paramount importance on the seniority rights of professional staff and the need to allow the school district some discretion to consider other factors when maldng a realignment.

On one hand, the cases have stated that the “intention of Section 1125.1(c) is to require school districts to assign positions to their professional staff strictly on the basis of seniority and to similarly realign their professional staff on the ‘basis of seniority when personnel changes have to be made.” Appeal of Cowden, 87 Pa. Commonwealth Ct. 165, 169, 486 A.2d 1014, 1016. On the other hand, the oa’ses have also stated that this Court will not substitute its judgment for that of a school board by requiring the board to accept a realignment plan proposed by a suspended or demoted employee where the Board’s rejection of the proposed plan is not an abuse of discretion or where the proposed plan would be impractical. Andresky v. West Allegheny School District, 63 Pa. Commonwealth Ct. 222, 229, 437 A.2d 1075, 1079 (1981); Platko v. Laurel Highlands School District, 49 Pa. Commonwealth Ct. 210, 215-16, 410 A.2d 960, 963 (1980); Tressler v. Upper Dublin School District, 30 Pa. Commonwealth Ct. 171, 179, 373 A.2d 755, 759-60 (1977); Godfrey v. Penns Valley School District, 22 Pa. D. & C. 466, 472-73 (1981) aff'd 68 Pa. Commonwealth Ct. 166, 449 A.2d 765 (1982).

Furthermore, this Court has held:

[A] professional employee does not acquire a vested right to teach in any certain class or in any certain school and the only limitation on the Board’s general power to assign a profes*42sional employee is that the work to which he is assigned be of a rank or class equivalent to that by which his permanent status was acquired and one for which he is qualified. ... In addition, the Board has a right to make reasonable rules and regulations, reassign teachers and take other steps necessary for proper administration of the school system.

Olson v. Board of School Directors Methacton School District, 84 Pa. Commonwealth Ct. 189, 191, 478 A.2d 954, 955 (1984) citing Smith v. School District of the Township of Darby, 388 Pa. 301, 306, 130 A.2d 661, 665 (1957); Board of School Directors of Abington School District v. Pittenger, 9 Pa. Commonwealth Ct. 62, 68, 305 A.2d 382, 385 (1973).

The majority’s holding in the case at bar not only divests the school district of its authority to reassign more senior teachers during a realignment, it also grants these teachers the right to select which class or administrative position they wish to occupy. The school district will no longer have the authority to realign professional staff at all, rather the professional staff will realign itself with the most senior employees having first choice of the positions they want. The net result of this decision may very well be that, during a realignment, those professional employees who are not at the very top of the seniority totem pole will lose the job security which the legislature intended to insure because they can be “bumped” by more senior employees. They will be stripped of the protection heretofore afforded by the school district’s authority to monitor the overall impact of the realignment.

I do not believe that this is the result intended by the legislature when it stated that:

A school entity shall realign its professional staff so as to insure that more senior em*43ployees are provided with the opportunity to fill positions for which they are certificated and which are being filled by less senior employees. 24 P.S. §1125.1 (c).

I disagree with the majority’s contention that the words of this statute are so clear and free from ambiguity as to mandate the conclusion which it reaches. The statute states that “a school entity shall realign . . .” My interpretation of these words is that the school entity shall be authorized to make the final realignment decisions; not that the professional staff shall make the final decision under the auspices of a court order. The statute further states that “more senior employees shall, be given the opportunity to fill positions for which they are certificated . . .”; it does not say that these employees shall have the right to fill any position for which they are certificated and which are being filled by less senior employees. The majority’s decision expands the statutory language to divest the school district of its authority over the final realignment decision and grants this authority to the professional staff.

Turning to the facts of the case at bar, we see the following: Appellant has more seniority than Frank Dattilo. The Board considered appointing Appellant to the position of principal of the High School but declined to do so because Mr. Dattilo had greater experience in administering the Senior High and was therefore better qualified, in the judgment of the Board, to meet the needs of the school especially during this period of massive change. Appellant was appointed to a position of rank requiring the same certification as that of his previous position and at the same salary. This appointment conformed to the requirements articulated in Olson.

I therefore conclude that the Board has performed its duty by giving first consideration to the seniority *44status of the secondary school administrators when developing its realignment plan. See Welsho. Within the confines of other legitimate, practical concerns, which I believe the board may properly consider, the Board assigned Appellant to a position of rank equivalent to his prior position by which he acquired his permanent status. See, e.g., Olson.

I would hold, therefore, that the District has not violated Section 1125.1(c) of the Public School Code by not appointing Appellant principal of the Senior High. Section 1125.1(c) does not require that more senior employees be permitted to select the position of their choice, but rather that a school board adopt a realignment plan which is consistent with the seniority rights of the professional staff, taking into consideration the practical needs of the District as found to exist by the Board and supported by substantial evidence on the record. Because the Board has met this criterion in the case at bar, I would affirm the order of the trial court.

Judge MacPhail and Judge Doyle join in this dissent.

The Public School Code, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §11-1125.1 (e).

Formerly 24 P.S. §11-1125 (repealed).