Anthony Burger v. School Board of the McGuffey School District
No. 6 WAP 2005, PA Supreme Court (2007)

Facts of the Case:

            On March 2, 2006, this case was argued before the Supreme Court of Pennsylvania, Western District, on direct appeal as the trial judge in the Court of Common Pleas of Washington County found Section 10-1080 of the Public School Code was in unconstitutional conflict with Article VI, Section 7 of the Pennsylvania Constitution.  The common pleas court determined it lacked subject matter jurisdiction over the Burger’s Section 10-1080-based challenge to the board’s termination of him as superintendent for cause, accomplished in Resolution 00/01-03 of January 10, 2001.

            Burger was charged with sexual harassment.  Burger’s hope of positive resolution rests upon Section 10-1080, which states that a hearing be held and “notice of at least one week has been sent to the accused.”  Burger requested two postponements of the dismissal hearing, which were granted, and on the third occasion his dismissal request was denied resulting in the hearing taking place less than one week after notice of the rescheduling without Burger or his attorney being present.  After the hearing, the board terminated him.

    
Burger appealed to the court of common pleas under local agency law and requested a de novo hearing.  The board claimed that it could remove a civil officer under Article VI, Section 7 of the Pennsylvania Constitution and that Section 10-1080 was unconstitutional.  Burger’s issues were, one, whether the common pleas court properly concluded Section 10-1080 of the Public School Code was unconstitutional, and, two, whether Burger had a property right arising out of his legitimate expectations of continued employment.

Decision of Court:

            On May 31, 2007, the Commonwealth Court found that Section 10-1080 is constitutional and reversed the trial court’s decision and remanded the case to it.  Upon resolution of the 10-1080 claim, Burger may pursue his ancillary claim of property rights in Commonwealth Court.

Basis of the Decision:

            The Supreme Court determined this is a constitutional issue of an explicit challenge to statutory language.  Article VI, Section 7 states “appointed civil officers, …, may be removed at the pleasure of the power by which they shall have been appointed.”  Section 10-1080 states superintendents and assistant superintendents may only be removed after a hearing. The court of common pleas found Section 10-1080 unconstitutional because it places limits upon the absolute authority granted by Article VI, Section 7. 

However, the Constitution also states that civil officers must “behave themselves well while in office” and that they “shall be removed on conviction of misbehavior:” The Supreme Court found that affirms that the Constitution does not vest sole power in the appointing authority.  The limitations of Section 10-1080 have procedural and substantive dimensions:  substantive in that the reasons for removal relate directly to behavior in office and procedural in that the language suggests basic notice and a hearing. 

The Supreme Court noted that recurrence to precedent, Weiss v. Zeigler, 193 A. 642,  affirms that the constitutional power of removal must be read in conjunction with other constitutional provisions.  Therefore, when the General Assembly creates a public office, it may impose terms and limitations on the removal of the public office so created.

As to the second issue of property rights, the Supreme Court found this ancillary to the constitutional issue which vested jurisdiction in the Court.  The appellant did not refer to precedent,Harrington v. Commonwealth Department of Transportation, Bureau of Driver Licensing , 763 A.2d (PA 2000), which states that an appellant must argue and develop reasons why ancillary issues should be addressed by the Court, or the ancillary issue will be remanded to the lower court.  Burger did not develop any link nor did he cite Harrington.

Prepared by Evan Williams, Summer 2007