Summary
In Vovakes v. Pennsylvania Department of Transportation, 71 Pa. Commw. 3, 7 n. 8, 453 A.2d 1072, 1074 n. 8 (1982), we stated that "[w]hile... an elimination of positions pursuant to a reorganization does not automatically establish a 'lack of work', the testimony in this case indicates that the streamlining of the department brought about an actual 'lack of work'.
Summary of this case from Weir v. Commonwealth, Department of Labor & IndustryOpinion
Argued September 15, 1982
December 30, 1982.
Civil service — Scope of appellate review — Reorganization Act of 1955, Act of April 7, 1955, P.L. 23 — Transfer — Administrative Code of 1929, Act of April 9, 1929, P.L. 177.
1. The scope of review of the Commonwealth Court of Pennsylvania in a civil service matter is limited to a determination of whether the constitutional rights of the employee have been violated or an error of law committed, or whether a necessary finding of fact was unsupported by substantial evidence. [5]
2. The Reorganization Act of 1955, Act of April 7, 1955, P.L. 23, relates to transfers of duties from one department of government to another not to a transfer within a department. [6]
3. When an intra-agency reorganization is approved by the Executive Board created by the Administrative Code of 1929, Act of April 9, 1929, P.L. 177, the reorganization is in compliance with the Code. [6]
4. The Commonwealth Court of Pennsylvania may not override factual findings of the Civil Service Commission where those findings are supported by evidence sufficient to convince a reasonable mind to a fair degree of certainty. [7]
5. Various administration officials, not the Civil Service Commission or the courts, are authorized to make decisions as to what best promotes the efficiency of the agency's services to the public. [7]
Argued September 15, 1982, before President Judge CRUMLISH, JR. and Judges BLATT and DOYLE, sitting as a panel of three.
Appeal, No. 671 C.D. 1980, from the Order of the State Civil Service Commission in the case of James Vovakes v. Department of Transportation, Appeal No. 2777.
State employee furloughed by Department of Transportation. Employee appealed to the State Civil Service Commission. Appeal dismissed. Employee appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
James R. Ronca, Meyers, Desfor and Ronca, for petitioners.
Michael J. McConey, Jr., Assistant Counsel, with him Mark Hodgeman, Assistant Counsel, Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for respondent.
James Vovakes (petitioner) appeals here from a decision of the Civil Service Commission (Commission) denying him relief from an order of the Department of Transportation (DOT) relieving him of his duties as Director of DOT's Fiscal Management Bureau.
George S. Eakin is also named in the caption as a petitioner in this matter. However, Eakin has since dropped his appeal and our decision is confined, therefore, to the petition of Vovakes.
The petitioner was informed on March 22, 1979 that his position was being abolished because of an intra-agency reorganization and that he was furloughed effective April 4, 1979. He timely appealed to the Commission, which, after a hearing, concluded that the furlough was proper and not in violation of the Civil Service Act, finding specifically that the combining of the Bureau headed by this petitioner with the Bureau of Management Information Systems (headed by his erstwhile co-petitioner, Eakin) would foster efficiency within the Department and that there had been no evidence presented before the Commission as to any discrimination against the petitioner.
Act of August 5, 1941, P.L. 752, as amended, 71 P. S. § 741.1-741.1005.
Our scope of review in this matter is limited to a determination of whether or not the constitutional rights of the petitioner have been violated, an error of law has been committed or a necessary finding of fact was unsupported by substantial evidence. Bureau of Employment Security v. Schreider, 24 Pa. Commw. 297, 355 A.2d 838 (1976).
The petitioner argues that DOT's decision to abolish the positions held by himself and Mr. Eakin and to place the two bureaus under one centralized head was effected without following the procedures set forth in the Reorganization Act of 1955. This act requires, inter alia, that the Governor submit reorganization plans to the General Assembly, and that an approving resolution must be adopted by that body before the reorganization may take effect. Clearly, this statute relates to transfers of duties from one department of government to another, not, as we have here, a transfer within a department. As the Commission noted, this was clearly an intra-agency action. The petitioner also fails to recognize, moreover, that Section 204 of the Administrative Code of 1929 (Code), creates an Executive Board while Section 709 of the Code, 71 P. S. § 249, gives that Board the power to approve and disapprove of the establishment of bureaus and divisions by the various administrative departments. The Board is also given the power to "investigate duplication of work of the several administrative departments, . . . , and the efficiency of the organization and administration thereof, and the better coordination of such departments, boards, and commissions." (Emphasis added.) The Commission found as a fact that the reorganization here concerned was approved by the Executive Board, and it was effected, therefore, in full compliance with the Code.
Act of April 7, 1955, P.L. 23, as amended, 71 P. S. § 750-1 — 758-1.
Act of April 9, 1929, P.L. 177, 71 P. S. § 64.
These powers are subject to a few exceptions not applicable here.
We note in passing that we can find no conflict or inconsistency between the Reorganization Act of 1955, and the Administrative Code of 1929, the latter statute being amended in pertinent part as recently as 1974.
The petitioner also argues that the actions of the DOT in abolishing his position were taken in bad faith and that the Commission's conclusion that he was properly furloughed pursuant to a lack of work, is unsupported by substantial evidence. We are limited however, by our aforementioned scope of review and we are not empowered to weigh credibility, Varndell v. Department of Public Welfare, 50 Pa. Commw. 349, 413 A.2d 11 (1980), nor may we override the Commission's factual findings where those findings are supported by evidence sufficient to convince a reasonable mind to a fair degree of certainty. Hobai v. Allegheny County Health Department, 38 Pa. Commw. 385, 392 A.2d 1388 (1978). The testimony presented before the Commission here clearly indicated that the reorganization was undertaken so as to streamline the functions of the department and thereby to increase departmental efficiency. And, as we stated in Department of Public Welfare v. Magrath, 14 Pa. Commw. 257, 321 A.2d 403 (1974), the laws of this Commonwealth have committed to the various administration officials, not to the Civil Service Commission or the courts, decisions as to what best promotes the efficiency of the agency's services to the public. See also, Forbes v. Department of Transportation, 61 Pa. Commw. 641, 434 A.2d 892 (1981) (department's elimination of a job classification is a managerial prerogative which cannot be usurped by the Civil Service Commission or this Court). The evidence here clearly supports the Commission's decision.
Section 3 of the Civil Service Act, 71 P. S. § 741.3(s).
Where, as here, employees are furloughed from the classified service, the appointing authority has the burden of going forward with proof to establish a prima facie case justifying the furloughs. D'Amato v. Department of General Services, 58 Pa. Commw. 489, 427 A.2d 1287 (1981). While we recognize that an elimination of positions pursuant to a reorganization does not automatically establish a "lack of work", the testimony in this case indicates that the streamlining of the department brought about an actual "lack of work". The appointing authority has met its burden, and we believe that the furlough was proper.
Lastly, as to the petitioner's allegation of discrimination, it was his responsibility to allege specifically whatever basis he had for this claim and to substantiate it before the Commission. Sienkiewicz v. Department of Public Welfare, 53 Pa. Commw. 445, 417 A.2d 874 (1980). Section 951(b) of the Act, 71 P. S. § 741.951(b). He completely failed to meet this burden.
We must, therefore, affirm the Commission's order.
ORDER
AND NOW, this 30th day of December, 1982, the order of the Civil Service Commission in the above-captioned matter is hereby affirmed.