Derry Township School District v. Finnegan

Dissenting Opinion by

Judge Bogers :

I respectfully dissent. The appellee, Mrs. Finnegan, was a tenured elementary school teacher with ten and a half years of service with the district. She was suspended by the school board as part of a reduction in the professional and nonprofessional staff because of a substantial decrease in student enrollment, pursuant to Section 1124(1) of the Public School Code of 1949 (Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §11-1124(1). There is no dispute that a substantial decrease in pupil enrollment justified the school district’s decision to decrease the number of its professional employees in the elementary schools or that the Board of School Director’s decision to . suspend two persons from the professional staff was proper. The issue is that of whether Mrs. Finnegan should have been the person to be suspended.

*71Section 11251 of the Code, 24 P.S. §11-1125 requires that school hoards consider both performance ratings and seniority status when identifying which professional employees are to be suspended. It further provides that seniority status shall prevail where there are no differences in the ratings of those under consideration for suspension and that where there are “substantial differences in rating of those under consideration for suspension, seniority shall be given consideration in accordance with principles and standards of weighting incorporated in the rating cards.” Section 1125(b) of the Code, 24 P.S. §11-1125(b).

The Derry Township School District’s rating plan provides that a difference of twelve points or more constitues a substantial difference in rating within the meaning of Section 1125(b) of the Code. The record shows that of a possible maximum of 100 points the appellee was rated at 46 points, the lowest of any elementary school teacher, and that the next higher rated elementary school teacher was rated at 59 points. As there was a substantial difference between the two scores, that is, more than twelve points, the school board weighted the scores by adding seniority factors and comparing the results. Mrs. Finnegan’s weighted score was 56.5 points, which was lower than the other teacher’s weighted rating of 65 points. The Board decided that Mrs. Finnegan and the teacher next higher in rating whose scores we have just described should be suspended. The teacher rated higher did not appeal from the school board’s action. As this litigation shows, Mrs. Finnegan did.

At the school board hearing conducted in the matter of her appeal and since, Mrs. Finnegan has contended that the District should have suspended only one of the two tenured elementary teachers who were *72professional employees; that it should have suspended the elementary school principal, who was a temporary professional employee,2 and replaced him by another tenured elementary teacher who was certified as an elementary school principal. The school board rejected this suggestion as impractical and concluded that “[t]he elementary school teacher [proposed as principal] is unacceptable as an elementary school principal. ’ ’

The court of common pleas, cm Mrs. Finnegan’s appeal, held that the school board committed an abuse of discretion in suspending Mrs. Finnegan, the objecting tenured elementary teacher, rather than suspending the temporary professional employee serving as elementary principal and filling the vacancy thus Created with a tenured professional employee serving as aii elementary teacher but certified as an elementary principal.

1 agree with the common pleas court and would ' affirm its order reinstating Mrs. Finnegan to her former position with back pay.

In Welsko v. Foster Township School District, 383 Pa. 390, 119 A.2d 43 (1956), a school board faced with a decrease in pupil enrollment chose to suspend a teacher with greater seniority than five other teachers ■whom it retained. The Pennsylvania Supreme Court, which overurned this action, wrote:

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 *73who, because of lesser seniority rights, have been suspended.

Id. at 393, 119 A.2d at 44. The instant facts are even more compelling than those in Welsho, since that case involved the respective seniority rights among tenured professional employees. Here, a tenured professional employee has been .suspended and a temporary prof essional employee has been retained.

Section 1101(3) of the Code, 24 P.S. §11-1101(3) defines ,a 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 employe whose services have been terminated by death, resignation, suspension or removal.” Temporary professional employees do not have the seniority rights of tenured professional employees under Sections 1124 and 1125 of the Code, Phillippi v. School District of Springfield Township, 28 Pa. Commonwealth Ct. 185, 367 A.2d 1133 (1977), and temporary professional employees must be suspended before tenured professional employees. Tressler v. Upper Dublin School District, 30 Pa. Commonwealth Ct. 171, 373 A.2d 755 (1977).

The school district contends that the realignment proposed by Mrs. Finnegan was impractical and that the trial court was without authority to substitute its judgment for that of the school board, in this regard. It cites Phillippi v. School District of Springfield Township and Platko v. Laurel Highlands School District, 49 Pa. Commonwealth Ct. 210, 410 A.2d 960 (1980), for the proposition that a school board does not have to realign its staff where such realignment is not practical.

I find no support in the record for the assertion that the realignment proposed here was impractical. Indeed, the Board made no findings of fact regarding the practicality of the proposal, other than noting in *74discussion that the elementary school teacher who was certified as principal lacked supervisory experience. The school board did not explain how a working elementary school teacher certified to be a principal may acquire supervisory experience without being appointed as a principal. More important, it concedes in its brief that the teacher proposed as principal was qualified as well as certified to be an elementary school principal.

The school district next contends that there is a fundamental distinction between principals and teachers and that principals should not be considered in the realignment and suspension process along with other professional employees. It further asserts that including principals in the realignment process would be in derogation of a school district’s right to choose its administrators. I disagree.

As noted, Sections 1124 and 1125 of the Code, 24 P.S. §§11-1124 and 1125, provide that when professional employees must be suspended, the school board shall suspend those with the least seniority. The Code at Section 1101(1), 24 P.S. §§11-1101(1) defines professional employees as:

those who are certified as teachers, supervisors, supervising principals, principals, assistant principals, vice-principals, directors of vocational education, dental hygienists, 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.

Since both principals and teachers are professional employees and since the circumstances of this case are such that all positions remaining to be filled after the ■suspensions could be filled by qualified tenured professional employees, the school board improperly sus*75pended a tenured professional employee and retained a temporary employee.

The school district also erects an argument on the fact that school principals have been held to be management employees without right to bargain collectively with their employers pursuant to the Public Employe Relations Act (PERA), Act of July 23, 1970, P.L. 363, as amended, 43 P,S. §§1101.101-1101.3201. Its thesis is that since under PERA principals are management level employees, they should not be placed in the same company with teachers in the realignment and suspension process. The purpose of the Public School Code and PERA are vastly different. The Public School Code is in discharge of the State’s obligation to provide an efficient system of public education; PERA’s purpose is to regulate the relationship between government and its organized employees. The Board’s syllogism contains a non sequitur. There is no reason in logic (or the administration of the public service) why principals and teachers should not be placed in the class of employees under the Code, but by PERA given different means of negotiating the terms of their employment with their employers.

The school district finally contends that even if it had realigned its professionals as Mrs. Finnegan proposed, only one teaching position in the elementary school would have been preserved and that would have been filled by the other suspended elementary school teacher whose weighted score was higher than Mrs. Finnegan’s. The other teacher, however, did not appeal her suspension, so that the choice for suspension was only between Mrs. Finnegan, a tenured professional employee and the incumbent principal, a temporary employee.

I would affirm the order of the Court of Common Pleas of Dauphin County.

Judge Craig joins in this dissent.

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

The elementary principal had been in the employ of the school district for less than the two years necessary under the Code to attain tenured professional employee status. §1108 of the Code, 24 P.S.. §11-11-8.