Appeal from the Order of the Secretary of Education in case of Appeal of Eleanora Thomas, Professional Employe, from the Decision of the Board of Public Education of the Pittsburgh School District, No. 12-77.
Persifor S. Oliver, Jr., Assistant Solicitor, with him Robert J. Stefanko, for petitioner.
Michael J. McCaney Jr., with him Stanford A. Segal, and Gatz, Cohen, Segal and Koerner, for respondent.
Judges Rogers, Blatt and DiSalle, sitting as a panel of three. Opinion by Judge Blatt.
[ 41 Pa. Commw. Page 491]
In this case the Board of Public Education of the School District of Pittsburgh (Board) has appealed
[ 41 Pa. Commw. Page 492]
from a decision of the Secretary of Education (Secretary) reinstating Eleanora Thomas (respondent) to her position as training specialist. Three issues are raised by the Board: did the Secretary improperly consider an issue not raised in the respondent's petition for appeal; was the Secretary justified in finding that the respondent's demotion was arbitrary; and may the Secretary reinstate an employee to a position in a department which has been abolished?
The respondent is a professional employee and was employed by the School District as a training specialist until she was demoted to the position of home and school visitor, effective January 1, 1976. Although the Board initially rejected her request for a hearing on the demotion, a hearing was eventually held on February 23, 1977,*fn1 at which there was testimony given that student enrollment had been declining substantially over the last five years, that a deficit of 4.2 million dollars was anticipated in 1976,*fn2 and that there was a "general feeling that [the] school district was top-heavy administratively." In light of these circumstances, the Board adopted a budget for 1976 which eliminated 130 positions, including all of the positions in the Division of Review where the respondent was employed. There was also testimony that staff reductions and demotions were attempted to be made in a manner which would least directly affect the instructional
[ 41 Pa. Commw. Page 493]
process, and that it was thought that the functions of this particular division "could be absorbed within other sections or divisions." The Board ratified the respondent's demotion, but the Secretary reversed on appeal and ordered that she be reinstated to her former position, concluding that the demotion was arbitrary because the respondent had saved the school district considerably more money than she was paid and because declining student enrollment did not justify demoting the respondent, for she had little if any contact with students. The Board's appeal to this Court followed.
The Board contends first that, although the issue was argued before the Secretary, the respondent in her petition to the Secretary failed to allege that her demotion was arbitrary or discriminatory. This is conceded by the Secretary in footnote 1 of her opinion, which reads:
It is noted that nowhere in the appeals filed by counsel for Thomas . . . with the Secretary of Education is it asserted that the demotions were made in an arbitrary or discriminatory manner. The sole issue raised specifically in the appeals is the question of ...