Civil Service Applicant’s Attendance at West Point Constituted “Active Duty” Service for Veteran’s Preference

An applicant for civil service employment who attended but did not graduate from a military academy still qualified for a veteran’s preference, the Pennsylvania Commonwealth Court held in Blake v. State Civil Service Commission, __ A.3d __ (No. 724 C.D. 2015, filed Feb. 17, 2016). Scott Blake applied for a civil service Special Investigator position and claimed a veteran’s preference. In support, Blake wrote that he enrolled at West Point in July 1991, completed basic training, and was discharged in January 1993 with the rank of cadet. The Commission denied Blake’s application and he appealed. At a hearing, the Commission Chairman acknowledged that it was unclear whether “active duty” as used to define the term “soldier” in the Military and Veterans Code, 51 Pa. C.S. §§101 – 9701, included persons who attended but did not graduate from a U.S. military academy. The Commission avoided that issue, holding instead that Blake was constitutionally prohibited from receiving a veteran’s preference because there was no reasonable relation between his service as a West Point cadet and the preference of veterans for public employment. Blake appealed.

The Commonwealth Court reversed, holding that the Commission erred in denying Blake a veteran’s preference. Writing for the unanimous panel, Judge Brobson first observed that the Commission should have analyzed the relevant statutory provisions instead of deciding the constitutional issue. The Court then focused on the definition of the term “solider” in Section 7101 of the Code, which, inter alia, requires a person to have been released from “active duty.” Because the General Assembly did not define the term “active duty,” the Court looked to veteran’s preference provisions in federal law for guidance. Notably, federal law defines “active duty” to include service as a cadet at a military academy. 38 U.S.C. §101(21)(D). Thus, the Court held that Blake’s service as a cadet constituted “active duty” under Section 7101 of the Code, and because Blake met the other requirements to be a “veteran” he was entitled to a veteran’s preference. The Court also held that, even if its statutory analysis had not resolved the matter, the Commission’s constitutional analysis was flawed because the “reasonable relationship” rationale it applied is limited to facial rather than as-applied challenges to veteran’s preferences.

By | 2017-05-19T22:51:22+00:00 March 9th, 2016|Categories: Employment Law|Tags: , , , , , , , , , , , , , , |Comments Off on Civil Service Applicant’s Attendance at West Point Constituted “Active Duty” Service for Veteran’s Preference

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