Brickhouse v. Spring-Ford Area School District

656 A.2d 483, 540 Pa. 176, 1995 Pa. LEXIS 223

• Court: Supreme Court of Pennsylvania
• Decided: April 4, 1995
• Status: Published

Opinions

OPINION

FLAHERTY, Justice.

When a veteran has applied for a vacancy on the teaching staff of a public school and establishes that he is certified to teach in Pennsylvania, must the veteran be hired for the position pursuant to the Veterans’ Preference Act, 51 Pa.C.S. § 7104, when the other applicants are non-veterans?

In 1990 Brickhouse applied for a position in the social studies department of the secondary level at the Spring-Ford Area School District (“the school district”). When Brickhouse learned that he was not selected for the job, he appealed the failure to hire and also brought a civil action seeking declaratory relief.

In response to Brickhouse’s appeal, the school board held a hearing pursuant to the provisions of the Local Agency Law, 2 Pa.C.S. § 101 et seq. A complete record was transcribed. After hearing, the board found that the position already had been filled at the time of Brickhouse’s application, that his application was incomplete, and that he was not, in any event, entitled to the position.

Brickhouse appealed the board’s decision and requested a trial de novo and, in the alternative, leave to appeal nunc pro tunc. The trial court granted the motion to appeal nunc pro tunc and dismissed the complaint for declaratory relief. Further, the trial court affirmed the factual findings of the school board.

On appeal from that determination, Commonwealth Court reversed, holding that the Veteran’s Preference Act requires that Brickhouse be hired. It rejected the school district’s arguments that section 7104(a) does not mandate a preference and also that the Veteran’s Preference Act does not apply to school employment. In addition, Commonwealth Court rejected the school district’s argument that the vacancy had been filled already when Brickhouse applied and that Brickhouse was not qualified, holding that since Brickhouse holds a valid teaching certificate, he is qualified. The school district argued that although Brickhouse was certified to teach in Pennsylvania, he was not qualified to teach in this particular school district, where high academic performance, outstanding recommendations, and current references were required. Commonwealth Court stated that the district “may not defeat the purpose of the Act by recognizing other ‘requisite qualifications’ beyond what the Commonwealth established.” 155 Pa.Cmwlth. 402 at 415, 625 A.2d 711 at 717.

The school district petitioned for allowance of appeal and we granted allocatur in order to determine the manner in which the Veterans’ Preference Act is to be applied to the facts of this case.¹

The Veteran’s Preference Act, § 7104(a) 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 is required, the appointing power in making an appointment or promotion to a public position shall give preference to such soldier.

51 Pa.C.S. § 7104(a). (Emphasis added.) There is no dispute that Brickhousé is a “soldier” within the terms of the act. Although other sections of the act concern the hiring and promotion of veterans in cases involving a civil service list or examination, see subsections 7104(b) and (c), in this case there is neither a civil service list nor an examination applicable to this job. Instead, this case involves criteria for hire formed by the school district.

The case turns on the meaning of the statutory phrases “requisite qualifications” and “eligible to appointment.” If Brickhousé has the necessary qualifications and is eligible for appointment, he must be given “preference” under the terms of the act.

The school district argues, in essence, that its requisite qualification for hire is that the candidate be a high achiever. The Superintendent of the school district testified as follows:

Q. Can you describe what — briefly, what is it that you are looking for in a social studies teacher?

A. Well, a social studies teacher, a kindergarten teacher or a science teacher, we are looking for a high academic performance, outstanding recommendations, current references.

The school district states that Brickhouse’s application was weak in that there was no letter accompanying the application dealing with the position applied for and explaining his interest, nor was there any letter explaining how his background, which was primarily non-academic, qualified him for the position. Additionally, Brickhouse’s grade average of 2.78 was deficient and his work history was very little related to teaching social studies. In the prior eleven years, Brickhouse had taught social studies for one year, but he had spent the rest of this time working as a paralegal, a bookkeeper, a manager of a trailer park, a manager of a hunting lodge, and a worker at reform schools or other special schools for children.

The person hired, on the other hand, had recently graduated with a 3.80 grade point average and had received several awards for his academic achievements. Additionally, this person had received very good evaluations with respect to his work as a long term substitute within the school district.

Brickhouse, however, argues that to be qualified to teach in Pennsylvania, the only requirements are that one be of sound moral character, over eighteen years of age and be certified to teach by the Commonwealth, and that once he is qualified, he must be awarded the job.

The landmark case in the area is Commonwealth ex rel. Graham v. Schmid, 333 Pa. 568, 3 A.2d 701 (1938), which held:

while it may be perfectly lawful to prefer veterans, there must be some reasonable relation between the basis of preference and the object to be obtained, the preference of veterans for the proper performance of public duties. Public policy, as well as constitutional restrictions, prohibits an unrestrained preference as it does a preference credit based on factors not representative of their true value.

The fact that veterans, either through voluntary enlistment or conscription, have been to wars for the preservation of their country should be given some consideration. It is the greatest service a citizen can perform, and it comes with ill grace for those of us not in such wars to deny them just consideration.... [0]n the other hand, where war service is appraised, in the allotment of public positions, beyond its valué, and the preference goes beyond the scope of the actual advantages gained in such service, the classification becomes void and the privilege is held unreasonable and arbitrary. Public policy demands such a rule of law. It is essential to the administration of public affairs that governmental employees be selected on the basis of their ability to perform the duties imposed upon them in an efficient manner, and if public servants are not selected on this basis, the appointing power violates its oath of office; where the legislature so provides, it offends the constitutional mandate.²

333 Pa. at 573-74, 3 A.2d at 704. It is clear, thus, that there must be a reasonable relation between the basis of the preference (being a veteran) and the object to be obtained (preferring veterans to properly perform public duties). In other words, veterans are not to be preferred in the assignment of public jobs merely on the strength of being veterans. They must be, in some sense, “qualified.”

Schmid also aids in defining the meaning of “qualified.” Veterans who seek to take advantage of the act must be able to accomplish “proper performance of public duties.” That is, a veteran seeking to take advantage of the preference mandated by the act must be able to demonstrate his ability to perform the job at the level of skill and with the expertise demanded by the employer. Such a demonstration would establish that he will be able to “properly perform” the job duties.

Since the applicant must demonstrate his ability to perform, merely having the appropriate certification or licensure, without more, would not serve to qualify an applicant for the job. Thus, Brickhouse’s assertion of qualification based on minimal age, good moral character, and certification to teach, must fail. These features may establish a veteran’s eligibility to be considered for the position, but they will not establish that he is “qualified” for the job.

Were ability to perform at the level of expertise demanded by the employer not required, not only would public policy mentioned in Schmid be violated, but the likelihood of absurd results, forbidden by the Statutory Construction Act, 1 Pa.C.S. § 1922(1), would be present in hundreds if not thousands of hirings. Amicus Pennsylvania School Boards Association suggests the following possibilities:

A person runs a mess hall for twenty years in the army. A school district with a thirty million dollar budget seeks a business manager. The mess hall sergeant has no post-high school education. The sergeant applies for the job and is the only veteran to apply. Ten other school business managers — all with experience — apply for the job. There are no state requirements such as certification for the job. According to the Commonwealth Court, the sergeant would get the job simply because he is a veteran.

Or, a school district is seeking a Spanish teacher for an accelerated program. Because of the sophistication of the students, an experienced teacher is sought who also has “hands on” experience in using the language in a Spanish-speaking country. A veteran applies who received Spanish certification twenty-five years ago, has never taught nor used the language since then. According to Brickhouse, the veteran is entitled to the position.

Although these scenarios are hypothetical, they illustrate problems of a sort likely to be faced by public employers.

Applying to this case the rule that in order to be “qualified,” veterans first must demonstrate an ability to carry out the job in question at the level of expertise demanded by the employer, it is apparent that Brickhouse was not qualified for the job as the school district had defined it. The school district sought a person of high academic performance with outstanding and current references. Brickhouse’s academic record, at best, is mediocre, and he did not furnish the required outstanding recommendations and current references.³ Putting it another way, the school district was looking for a highly motivated, currently involved teacher who had accomplished considerable success in his teaching endeavor. Had Brick-house met these criteria, he should have been preferred under the act.

We are mindful that a public employer might be able to formulate qualifications for a job in such a way as to defeat the veterans’ preference required by the act. When such formulations are undertaken in bad faith without regard to legitimate need, they must fail, but determination of the legitimacy of the employer’s formulation of hiring criteria can be done only on a case by case basis.

If it is required as a matter of public policy, as we have held, that a person who is preferred under the Veterans’ Preference Act must be able to demonstrate his ability to perform the job in question at the level of expertise demanded by the employer, then the employer must be free to set the hiring requirements of that job as they reasonably relate to the duties to be performed in order to ensure that the person hired will be competent.

In this case, there is no doubt that the school district’s criteria for employment were rationally related to the job and that Brickhouse’s credentials did not qualify him for the job. Were these considerations less apparent than they are, we would remand for an evidentiary hearing to determine whether the employer’s requirements for the job were reasonable and the whether the applicant was “qualified” with respect to those requirements.

Whatever Brickhouse’s accomplishments may be, and they appear to be many, he is not accomplished in the particular manner sought by the school board. He is not, therefore, qualified for the job which was available, and preference under the Veterans’ Preference Act, accordingly, does not apply.⁴

Order of Commonwealth Court is reversed.

PAPADAKOS, J., did not participate in the consideration or decision of this matter.

ZAPPALA, J., files a concurring opinion which is joined by CAPPY, J.

CASTILLE, J., files a dissenting opinion.

MONTEMURO, J., is sitting by designation.

1 . The parties have also raised question as to whether the Commonwealth Court applied the proper standard of review and whether there was a vacant teaching position at the time of Brickhouse's application. Because of our disposition of the case, we decline to address these matters.

2 . The "constitutional restrictions” and the "constitutional mandate” referred to in Schmid, derived from Article III, Section 7 of the Pennsylvania Constitution, which at that time prohibited granting special or exclusive privileges or immunities. In 1967, this language was deleted from the constitution by amendment.

However, Schmid is also grounded on constitutional principles sounding in due process and equal protection:

[Veterans’] preferences have been considered by the courts under constitutional prohibitions against special privileges and unreasonable classification, and while the constitutional provisions differ somewhat in the various jurisdictions, they are similar in that all permit reasonable classifications and prohibit unreasonable ones and arbitrary privileges.

333 Pa. at 573, 3 A.2d at 704. (Emphasis added.)

3 . The record contains three references which concern the years 1984 through 1986. These references were apparently submitted with Brick-house’s 1990 application. Although the references speak highly of Brickhouse’s work and his character, they are not current and they do not concern teaching.

4 . Contrary to Commonwealth Court, see 155 Pa.Cmwlth. at 415, n. 10, we do not perceive that a different result is required by § 7105 of the Veteran’s Preference Act. That section provides:

The lack of academic or scholastic training or experience, age, loss of limb or other physical impairment which does not in fact incapacitate any such soldier shall not be deemed to disqualify him, provided he possesses the other requisite qualifications to satisfactorily perform all of the duties which the position requires.

Brickhouse does not "lack” academic training; he has a college degree. He is disqualified because he does not possess “the other requisite qualifications to satisfactorily perform all of the duties which the position requires.”