30 Pa. Commw. 171 | Pa. Commw. Ct. | 1977
Opinion by
In this case we are again confronted with the problems inherent in the suspension and terminations of professional and temporary professional employes due to declining enrollment. One professional employe and three temporary professional employes contest their suspension and terminations, respectively, pursuant to Sections 1124 and 1125 of the Public School Code, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§11-1124,11-1125 (Code),.by the Board of Directors of the Upper Dublin School District (Board). This suspension and these terminations were the result of resolutions adopted by the Board on April 29, 1975.
Two primary issues present themselves for resolution on appeal. First, was there a substantial decline in pupil enrollment, supported by the record? Second, if there was a substantial decline in pupil enrollment, were the procedures followed in the selection of the professional employe and temporary professional employes proper and in accordance with the Code ?
Our scope of review is limited by Section 8 of the Local Agency Law, 53 P.S. §11308, in that we must “affirm the action of the local agency unless we find a violation of appellant’s constitutional rights, an
Section 1124 provides, in pertinent part:
Any board of school directors may suspend the necessary number of professional employes for any of the causes hereinafter enumerated:
(1) Substantial decrease in pupil enrollment in the school district;
Whether or not there is a decline in pupil enrollment, “is an area in which school boards must exercise discretion and board action will not be disturbed absent a showing that such discretion was abused, or that the action was arbitrary, based on a misconception of law or ignorance of facts.” Phillippi, supra. Appellants contend that the evidence presented by appellee does not support a finding of substantial decline in pupil enrollment.
Appellants argue next that the procedures followed in determining those persons to be suspended or terminated were contrary to the Code. Section 1125 of the'Code, provides the procedure for suspending professional employes:
(a) - Whenever a board of school directors decreases the size of the staff of professional employes, the suspensions to be made shall be determined by the district superintendent on the basis of efficiency rank determined by ratings made in accordance with standards and regulations, determined by rating cards prepared by the ■ Department of Public Instruction, as required by section one thousand one hundred twenty-three of this act. It shall be the duty of boards of school directors to cause to be established a permanent record system, containing ratings for each professional employe employed within the district. . . .
(b) In cases in which suspensions are to be made, professional employes- shall be retained on the basis of seniority rights, acquired within the school district of current employment, where no differences in rating are found. Seniority*177 rights shall also prevail where there is no substantial difference in rating. In cases 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. . . .
(c) No suspended employe shall be prevented from engaging in other occupation during the period of such suspension. Suspended professional employes shall be reinstated in the inverse order of their suspension. No new appointment shall be made while there are suspended professional employes available, who are properly certified to fill such vacancies.
The procedure followed by the school district in determining the persons to be suspended or terminated was substantially as follows: During the 1974-75 school year planning began for the following year, and assessments were made of staffing requirements, the budget and pupil population. Realizing that pupil population was on the decline, the district pinpointed the areas in which the decline was the greatest, which were the elementary, special education, and language departments. The number of staff to be reduced in each area was then determined and in the elementary education department the reduction was found to be limited to the temporary professional employees. Then, a numerical rating was performed on all staff in the language and special education departments and all the temporary professionals in the elementary education department in April of 1975 (a separate list being made for each department).
Our decision in Phillippi, supra, has simplified this issue immensely with regard to temporary professional employees. In Phillippi, supra, we found that temporary professionals are not entitled to the benefits of Sections 1124 and 1125 of the Code. Temporary professional employees are not suspended, their contracts are simply not renewed. By analogy to Section 1124 we reasoned in Phillippi, supra, that the contracts of temporary professionals may not be renewed if there is a substantial decrease in pupil enrollment, as we have here. Thus, without the benefit of Section 1125 temporary professionals have no right to be compared with professional employes on the basis of efficiency ratings nor for that matter among themselves. Further, the concept of realignment as expressed in Welsko v. Foster Township School District, 383 Pa. 390, 119 A.2d 43 (1956), is not applicable to temporary professional employes. Phillippi, supra. The Board in the instant case treated the temporary professionals with consummate fairness in determining to consider them as if suspended.
With regard to the one professional employe it is clear from the record that her selection as the person to be suspended was proper under the Code. The testimony indicates that after consideration of ratings and seniority, as well as areas of certification and realignment of staff, that this appellant was the correct
Appellants argue further that the school district has violated the dictates of our Supreme Court in Welsko, supra, concerning realignment of staff. We disagree. We believe the record supports the fact that a realignment was considered and found to be impracticable.
Accordingly, we will enter the following
Order
Now, May 19,' 1977, the' order of the Court of Common Pleas of Montgomery County, No. 75-15383, dated April 5, 1976, affirming the action of the Board of Directors of the Upper Dublin School District in suspending Babette Tressler, Marilyn Manley, Barbara Klotz and G-ail Valentine, is affirmed.
Atotal of eight persons were named in the resolutions, one professional employe and seven temporary professional employes.
This appeal procedure was specifically approved by our decisions in Smith v. Board of School Directors of The Harmony Area School District, 16 Pa. Commonwealth Ct. 175, 328 A.2d 883 (1974). Accord, Phillippi v. School District of Springfield Township, 28 Pa. Commonwealth Ct. 185, 367 A.2d 1133 (1977).
Appellee attempted to raise the issue of mootness before the lower court by way of an Answer with New Matter. The New Matter stated that three of the four appellants (the one professional employe and two of the three temporary professional employes) had been reinstated. That was an inappropriate method by which to raise the issue of mootness. The issue of mootness is raised by a motion to dismiss for mootness. Pa. R.A.P. 1972. Had the issue been properly raised it appears that the case would have been moot.
School Elementary Secondary Total
Year Enrollment Enrollment Enrollment
1969- 70 2,743 2,358 5,101
1970- 71 2,690. 2,509 5,199
1971- 72 2,667 2,671 5,338
1972- 73 2,629 2,742 5,371
1973- 74 2,514 2,770 5,284
1974- 75 2,375 2,806 5,181
1975-76 2,189 projected 2,814 projected 5,003 projected
School Tear Enrollment
1969- 1970 2,294
1970- 1971 2,283
1971- 1972 1,057
1972- 1973 666
1973- 1974 405
1974- 1975 425
1975- 1976 403 projected
Tlie decline in this area is due primarily to change in the elementary and junior high school conversational language curriculum in 1972. Appellants, however, do not contest the legality or propriety of such a curriculum change.
Appellants point out that the findings of the school district indicate all elementary education staff (professional and temporary professional) were rated numerically in April 1975. The
There were no temporary professional employes in the Spanish section of the language department.
Appellants also contend that the common pleas court made additional findings of fact in violation of the limited scope of review allowed by Section 8 of the Local Agency Law, 53 P.S. §11308 (b). We find no basis for these contentions.