Brickhouse v. Spring-Ford Area School District

CASTILLE, Justice,

dissenting.

I respectfully dissent. The sole issue in this case is whether the Veterans’ Preference Act at 51 Pa.C.S. § 7104(a) (the “Act”) mandates that a veteran seeking a teaching position with a school district meet the skill and expertise requirements established by that individual school district or, in the alternative, whether such veteran must merely meet the more general skill and expertise requirements established by statute. In holding that the veteran-applicant must satisfy the eligibility requirements set forth by an individual school district, the majority infuses the Act with standards not contemplated by the General Assembly, thereby leaving Pennsylvania veterans with an illusory preference benefit.

In support of its position, the majority contends that the individual school district should have been able to formulate qualification standards beyond those established by statute and that Briekhouse did not meet this particular school district’s qualifications for the teaching position in question which allegedly included high academic performance, outstanding recommendations, and current references. Majority Opinion at 180. However, the majority ignores the statutory provision directly following Section 7104 which provides that “the lack of academic or scholastic training or experience ... shall not be deemed to disqualify [any veteran from the benefits of the Act], provided he possesses the other requisite qualifica-tions____” 51 Pa.C.S. § 7105. This succeeding provision *188 makes it clear that a veteran’s qualifications are not to be considered relative to any ad hoc standards established by a potential public employer, but only relative to that which makes him qualified to perform the duties of the position in question. In short, by supplementing Section 7104 with Section 7105, it is evident that the General Assembly sought to ensure a veteran’s hiring preference even when that veteran possesses only the minimum criteria required by statute for the job.

In Commonwealth ex rel. Graham v. Schmid, 333 Pa. 568 , 3 A.2d 701 (1939), this Court considered the separate issue of whether the veterans’ preference provision of the Third Class City Law relating to the examination and employment of building inspectors was constitutional in light of the now-repealed Pennsylvania constitutional prohibition against granting class privileges. This Court held that a veterans’ preference statute is constitutional since there exists a rational relationship between the basis of the preference (status as a veteran) and the object to be obtained (preferring veterans for public-duty employment). Id., 333 Pa. at 573-574 , 3 A.2d at 704 . We grounded that analysis on the assumption that a veteran is reasonably fitted for a pubjjc-duty position (and, therefore, the rational relationship will be deemed to exist) when a veteran-applicant possesses only the minimum qualifications necessary to fulfill the duties of the public-duty position sought. See id. (“[t]he underlying principle in all cases is that to sustain any preference the veteran must [merely] posses the minimum qualifications necessary to perform the duties involved”). 1

The majority, on the other hand, asserts that a rational relationship is found only where “a veteran seeking to take advantage of the preference mandated by the act [is] able to demonstrate his ability to perform the job at the level of skill *189 and with the expertise demanded by the employer.” Majority Opinion at 183. Notwithstanding the majority’s ability to manufacture its conclusion from whole cloth (obviously not khaki-colored) and not from our decision in Schmid or from the language of the applicable statutes, the instant appellee possesses the qualifications necessary for a teaching position in this Commonwealth. Brickhouse is a graduate of an accredited college who holds a valid teaching certificate accepted by the Commonwealth, is over 18 years of age, is a U.S. citizen, and is morally fit for the position. See the Public School Code of 1949 at 24 P.S. §§ 11-1109, 12-1201. Accordingly, because appellee possesses the requisite statutory minimum qualifications for the position, he is entitled to the veteran’s preference mandated by the Act, notwithstanding the “higher” qualifications created by the school district.

Further, as a result of the majority’s position, public employers may easily undermine the Act’s broad altruistic objectives merely by defining for themselves the level of “requisite qualifications” necessary to perform the duties of the position in question. For example, a Commonwealth agency determined to evade the veterans’ preference statute could merely select a specific candidate with a certain employment history for an open position and then apply that candidate’s particular qualifications as the standard “requisite qualifications” against which a veteran must compete who would otherwise be entitled to the statutory preference, thereby disregarding the clear mandate of the Act. The majority’s solution to this problem is that the “determination of the employer’s formulation of hiring criteria can be done only on a case by case basis.” Majority Opinion at 184.

In light of the great service and personal sacrifice rendered by Pennsylvania’s veterans both in time of war and in time of peace, the statutory preference granted to our veterans must be a reality, not illusory or a mere gesture and certainly not subject to endless litigation regarding each public employer’s formulation of the “requisite qualifications.” Veterans’ preference statutes exist as a form of consideration for society’s recognition that (1) veterans generally bring highly valued skills conducive to the better performance of public employ *190 ment duties, including discipline, experience and service; (2) veterans suffer from a comparative disadvantage relative to non-veterans because of their exclusion from the labor market during their period of military service to the nation; and (3) veterans have rendered the greatest service a citizen can perform namely, the defense of our liberty. See Schmid, 333 Pa. at 573-574 , 3 A.2d at 704 ; Northeastern Educational Intermediate Unit No. 19 v. Stephens, 98 Pa.Commw. 127, 138, 510 A.2d 1267, 1273 (1986). These considerations highlight the very reason why the language in our preference statute is mandatory and not merely permissive: the General Assembly intended to reward veterans’ service to the country and intended that veterans have the actual benefit of the preference granted by the Act. See also 1 Pa.C.S. § 1928(c) (statutes not included in any class of statute listed by the legislature as requiring a strict construction (such as the Act) must be liberally construed to effect its object and to promote justice).

The Act’s use of the mandatory term “shall” with reference to granting the preference to veterans possessing the requisite qualifications points strongly to a legislative intent to take from the employer most (if not all) discretionary power of appointment in the case of a veteran. Indeed, although the legislature can make a law to delegate a power to carry out some administrative function upon which the law depends, the legislature cannot delegate its constitutional duty to make law and the policy choices inherent in such action. Blackwell v. Commonwealth, State Ethics Commission, 523 Pa. 347, 359-360 , 567 A.2d 630, 636-637 (1989), reargument granted, 524 Pa. 403 , 573 A.2d 536 (1990), aff'd, 527 Pa. 172 , 589 A.2d 1094 (1991) (citations omitted). The legislature may delegate its power to determine the application of a specific statute only if in so doing it surrounds such power with definite standards, policies, and limitations to which the delegatee must strictly adhere and by which the delegatee is strictly governed. Id. In sum, the principal limitation on the delegation of legislative power is that basic policy choices must be made by the legislature, not by the delegatee who may wish to ignore or evade those policies. Id.

*191 Here, the Act merely states that the preference shall be granted in those cases in which the veteran possesses the “requisite qualifications” for the position. 51 Pa.C.S. § 7104(a). The General Assembly did not, within this statutory provision, define what qualifications are “requisite.” But in the Public School Code of 1949 at 24 P.S. §§ 11-1109,12-1201, the General Assembly defined the qualifications: a person is qualified to teach in the public schools of the Commonwealth if that person holds a valid teaching certificate accepted by the Commonwealth, is over 18 years of age, is a U.S. citizen, and is morally fit for the position. Pursuant to the majority’s analysis, each potential public employer is now granted the discretionary authority to define the level of “requisite qualifications” a veteran must possess to trigger the preference. Vested with this discretionary authority, public employers may define “requisite qualifications” by reference to the minimum statutory qualifications or by reference to its own skill and expertise requirements. In so doing, public employers are thereby empowered to redefine one of the basic premises on which the Act rests in that individual employers may now decide for themselves, without reference to the legislature’s mandate, the essential scope and application of the Act. In short, the majority opinion vests public employers with the power to make a basic policy choice in violation of the general prohibition against such delegation of authority. The majority’s interpretation of the Act, then, ostensibly renders the veterans’ preference statute unconstitutional, a clearly unwarranted result under the law. 2

Accordingly, public employers should refer only to the qualifications defined by the General Assembly and its statutes as necessary to fill a public-duty position. As stated *192 supra, the instant appellee possesses the qualifications defined by statute as necessary to hold a teaching position in this Commonwealth. He is, therefore, entitled to the preference mandated by the veterans’ preference Act. The majority decision makes this another day of infamy with regard to the rights of Pennsylvania’s veterans. For the foregoing reasons, I would affirm the order of the Commonwealth Court.

. It must be noted that in Schmid a veteran was deemed to possess the minimum qualifications necessary for a position if he had passed the relevant examination. Although there is no examination requirement at issue in the instant case, the requirement of holding a valid teaching certificate is sufficiently analogous to the passing of a civil service examination so that Schmid is instructive to the facts before us.

. My research also indicates a potential due process problem with the majority’s analysis of the Act. The U.S. Court of Appeals for the Third Circuit recently held that the Pennsylvania Veterans’ Preference statute at 51 Pa.C.S. § 7104(b) granting a promotion preference (as opposed to a hiring preference) confers a constitutionally protected property right upon a veteran. Carter v. City of Philadelphia, 989 F.2d 117, 122-123 (1993). As such, the grant or denial of the statutory preference must comport with basic notions of due process. See id. In that regard, a *192 statute which requires the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. Connally v. General Construction Co., 269 U.S. 385, 391 , 46 S.Ct. 126, 127-28 , 70 L.Ed. 322 (1926). This constitutional safeguard ensures that state power will be exercised only on behalf of policies reflecting an authoritative choice among competing social values and that the danger of arbitrary discrimination in the administration of the laws is reduced. Kolender v. Lawson, 461 U.S. 352, 357-358 , 103 S.Ct. 1855, 1858-59 , 75 L.Ed.2d 903 (1983). Here, as stated, the majority’s analysis of the Act now confers on each public employer the discretionary authority to define the level of “requisite qualifications” a veteran must possess to trigger the preference. To the extent the statutory phrase "requisite qualifications” then takes on hundreds or even thousands of different meanings (in accordance with the number of public employers), the statute may be rendered unconstitutionally vague in that veterans seeking to capitalize on the statutorily-granted preference must necessarily guess at the meaning of the phrase "requisite qualifications." Under the majority’s analysis, the grant or denial of the preference, a constitutionally protected property right, is made without regard to the protections against the arbitrary exercise of governmental power afforded by our basic concepts of due process.