Appeal from the Order of the Secretary of Education in case of Robert J. Nagy v. Belle Vernon Area School District, Teacher Tenure Appeal, No. 30-78.
Daniel Myshin, of Auto, Myshin & Martin, for petitioner.
John E. Costello, for respondent.
Judges Wilkinson, Jr., Rogers and Craig, sitting as a panel of three. Opinion by Judge Craig. President Judge Bowman did not participate in the decision in this case. Judge DiSalle did not participate in the decision in this case.
[ 49 Pa. Commw. Page 454]
Robert J. Nagy petitions for review of a decision of the Secretary of Education, which affirmed the action of the Belle Vernon Area School District Board of Education (board) in abolishing that district's nonmandated position of Director of Elementary Education, held by petitioner, and then returning him to classroom teaching.
Contemporaneous with that action, the board created a position of Supervisor of Curriculum and Instuction Grades K through 12, and named an individual, other than petitioner, to fill that position.
Our scope of review in appeals from the Secretary of Education is to determine whether or not an error of law was committed, constitutional rights were violated, or necessary findings of fact are unsupported by substantial evidence. McCoy v. Lincoln Intermediate Unit No. 12, 38 Pa. Commonwealth Ct. 29, 391 A.2d 1119 (1978).
[ 49 Pa. Commw. Page 455]
The board acknowledges that its action in returning petitioner to a teaching position was a demotion, and as such entitled petitioner to a hearing on the grounds for that action, as provided by Section 1151 of the Public School Code of 1949 (Code), Act of March 10, 1949, P.L. 30, Art. XI, § 1151, as amended, 24 P.S. § 11-1151, in conjunction with § 1127 of the Code, 24 P.S. § 11-1127. We note here that a hearing is not required for the effective abolition of a position, but only for the accompanying demotion or dismissal of the employee. Sharon City School District v. Hudson, 34 Pa. Commonwealth Ct. 278, 383 A.2d 249 (1978); Black v. Wyalusing Area School District, 27 Pa. Commonwealth Ct. 176, 365 A.2d 1352 (1976). However, a demotion cannot become effective until after the hearing has taken place. Tassone v. Redstone Township Page 455} School District, 408 Pa. 290, 183 A.2d 536 (1962); McCoy, supra.
Petitioner's argument is that his demotion was improper because the notice provided was insufficient, the hearing was not timely held, and, in any event, was not a fair hearing consistent with due process. We address these issues in the order stated.
We find no merit in petitioner's contention regarding the sufficiency of notice. Petitioner contends that the only notice received was a letter the board's secretary sent to him, under date of July 13, 1978, which stated in part that the position was being abolished "for reasons of economy and for a better structural arrangement in the district," and also that, pursuant to a request by petitioner's counsel, a hearing on the matter was scheduled for July 31, 1978. Enclosed with that correspondence was a copy of the resolution which the board had adopted abolishing the position held by petitioner, returning him to classroom teaching, and continuing his then current salary through the months of July and August of 1978. We cannot conceive of any more sufficient notice of the basis of petitioner's demotion than that presented.
With regard to timeliness, the record reveals that petitioner's request for a hearing was made on July 6, 1978; that the board responded in the correspondence described above; and that a hearing was conducted as scheduled on July 31, 1978. Clearly, that time span exceeds the 15-day maximum period within which a hearing must follow notice of charges, as prescribed in Section 1127 of the Code, 24 P.S. § 11-1127, whether measured from the July 6 request, or from the July 13 correspondence which petitioner claims is the only notice provided. Because the demotion could not be ...