Appeal from the Order of the Secretary of Education in case of Malcolm Jarvis v. Allegheny Intermediate Unit, Teacher Tenure Appeal, No. 33-77.
William C. Andrews, with him, Thomas M. Rutter, Jr., Goehring, Rutter & Boehn. for petitioner.
Eugene P. Girman, Girman & Bacharach, for respondent.
Judges Craig, Barry and Colins, sitting as a panel of three. Opinion by Judge Craig.
[ 88 Pa. Commw. Page 588]
In Allegheny Intermediate Unit v. Jarvis, 48 Pa. Commonwealth Ct. 636, 410 A.2d 389 (1980), this court agreed with the Secretary of Education that the Allegheny Intermediate Unit (AIU) had erred in discharging teacher Malcolm Jarvis for his refusal to accept a transfer assignment. Because Jarvis' certification is as a teacher of the mentally retarded, section 1202 of the Public School Code of 1949*fn1 negatived the AIU's power to assign him to work "which he has not been properly certificated to teach."
However, because the Secretary had then directed that Jarvis "be reinstated to his position "*fn2 with the AIU, this court remanded the case to the Secretary for "specific findings which the Secretary shall make."*fn3 as to whether "his position," from which he had been transferred, was itself one for which he was properly certificated.
[ 88 Pa. Commw. Page 589]
After the issuance of that order of this court on January 22, 1978, the Department of Education inexplicably took more than three years to act further. On November 15, 1983, a new decision of the Secretary advised that, because the AIU had eliminated Jarvis' previous position, the earlier order had intended to mandate reinstatement "to any available position within AIU for which he was properly certificated -- i.e., any position as a teacher of the mentally retarded," rather than reinstatement to "his position", as the decision had stated. However, despite that logical and understandable clarification, the Secretary's decision did not make any findings as directed, but merely delegated to the AIU the responsibility of determining what proper positions have been available for Jarvis in the interim. From the later decision of the Secretary, the AIU has again appealed, contending that:
1. Jarvis would have no right at all to reinstatement or backpay if his incumbency in his last position was unlawful, that is, if it was a position for which he was not properly certificated; and
2. The Secretary erred in referring to a departmental policy memorandum issued in 1979 with respect to certifications in special education, as it may pertain to this matter begun in 1977.
On the first point, the AIU's contention is patently unacceptable. If the AIU previously assigned Jarvis to a position for which he was not certificated, his willingness to perform that work clearly could not negate the applicability of the statutory requirements to any subsequent assignment of him. The AIU, we hold, is ...