Employment; Constitutionality of Application of Veterans’ Preference to Promotions

Dep’t of Corrections v. Lynn, 2022 WL 433098 (Pa. Cmwlth.) (unreported), allocatur granted Sept. 13, 2022, appeal dockets 95 and 96 MAP 2022

Lynn and Novotnak, employees of the Department of Corrections (DOC), applied for the position of welding instructor. Both are veterans. Lynn was a DOC corrections officer, a civil service position. Novotnak was a DOC corrections maintenance foreman, a non-civil service position. Lynn scored 95 on the test. Novotnak scored 90 on the test. Veterans’ preference points were added to Novotnak’s score, raising it to 100, but not to Lynn’s, and Novotnak got the job.

Lynn appealed to the State Civil Service Commission, arguing that he should have received veterans’ preference points. The Commission agreed, and ordered that Lynn receive the points and get the job, and that Novotnak be returned to his previous position.

DOC appealed to the Commonwealth Court, arguing that the Commission erred as a matter of law in ordering that Lynn be afforded veterans’ preference points and get the welding instructor position, because veterans’ preference points are not available when applying for a promotion within an organization, and based on the definition of “promotion” in the Civil Service Reform Act (CSR Act), the new position was a promotion for Lynn, but not for Novotnak, with the result that  Lynn was not entitled to veterans’ points but Novotnak was.  As the Commonwealth Court explained, DOC based this argument on Supreme Court precedent related to the application of veterans’ preference points in the context of promotions within an organization:

DOC … cite[s] our Supreme Court’s decision in Hoffman v. Township of Whitehall, 677 A.2d 1200, 1203 (Pa. 1996), as support for the[] allegation that the Commission’s decision violated the Veterans’ Preference Act and the Pennsylvania Constitution. In Hoffman, our Supreme Court held that “[S]ections 7103(a) and 7104 (b) of the Veterans’ Preference Act are, in the context of veterans seeking promotions in public employment, unconstitutional.” Hoffman, 677 A.2d at 1203. As a result, for promotions to public positions, veterans’ preference may not be awarded because such an award overvalues military training, thereby creating impermissible class legislation. Id. at 1201-03. Further, in Housing Authority of County of Chester v. Pennsylvania Civil Service Commission, 730 A.2d 935 (Pa. 1999), our Supreme Court opined:

 [A] clear line can be discerned in our jurisprudence between mandatory veterans’ preference in the context of appointment to a civil service position as opposed to the context of promotion to a civil service position from within the promoting agency or organization. The operation of the mandatory veterans’ preference provisions in the former context is constitutional; in the latter context it is not.

Id. at 949.

Slip op. at 4-5 (footnotes omitted).

Relying on the definition of “promotion” in the CSR Act, DOC argued that to constitute a promotion, a change of position must move an employee from one position within the classified service to another position within the classified service. As the court explained DOC’s position:

Under this reasoning, moving Lynn from a CO-1 position to a Welding Instructor position constituted a promotion because Lynn was already a civil service employee, yet moving Novotnak, a maintenance foreman, to a Welding Instructor position did not constitute a promotion because Novotnak was not already a civil service employee, even though he and Lynn were both employed by the DOC and the Welding Instructor position represented an increase in salary for both of them. 

Slip op. at 5.

Rejecting DOC’s reasoning, Commonwealth Court affirmed the Commission’s decision requiring that Lynn receive the veterans’ preference points and get the job, adopting the Commission’s rationale:

In the present case, there is no merit-related reason for denying [Lynn] preference while awarding it to Novotnak. Both candidates are currently employed at the same agency, in the same institution – the same organization and environment in which to hone their skills – prior to seeking the [Welding Instructor] position. Awarding preference to Novotnak because he is non-civil service and ejecting [Lynn] …  penalizes [Lynn] for already being in the classified service.

Slip op. at 6, quoting the Commission’s decision.

In addition, the court reasoned:

[T]he purpose of veterans’ preference is not solely a reward to the veteran for military service. More importantly, it is “also a formal recognition of the value of intangible qualities developed during significant military service[,]” which benefits the public when a veteran is placed in a civil service position. Soberick v. Salisbury Twp. Civ. Serv. Comm’n, 874 A.2d 155, 159 (Pa. Cmwlth. 2005). Here, awarding veterans’ preference to Novotnak while denying it to Lynn does not fulfill the purposes of the veterans’ preference legislation.  

Slip op. at 12-13. The Supreme Court granted DOC’s petition for allowance of appeal as to the promotion/preference issue.

The issue, as stated by petitioner, is:

Is the Commonwealth Court’s decision contrary to longstanding precedents of the Supreme Court of Pennsylvania, including Hoffman v. Township of Whitehall and Housing Authority of County of Chester v. Commission, which hold that application of veterans’ preference to promotions is unconstitutional?


For more information, contact Kevin McKeon or Dennis Whitaker.