Opinion
Argued November 17, 1982
October 12, 1983.
Civil service — Administrative Agency Law, 2 Pa. C. S. § 704 — Scope of appellate review — Bonds.
1. Under the Administrative Agency Law, 2 Pa. C. S. § 704, the Commonwealth Court of Pennsylvania must affirm an adjudication of the Civil Service Commission unless constitutional rights are violated, errors of law are committed, or necessary findings of fact are not supported by substantial evidence. [490]
2. When the Secretary of Transportation decides to halt bond sales for rational and legitimate reasons of economy, neither the Civil Service Commission nor the Commonwealth Court of Pennsylvania may substitute its judgment for that of the Department's officials. [490]
3. Judging issues of credibility and resolving evidentiary conflicts are functions of the Civil Service Commission, not the Commonwealth Court of Pennsylvania, and the Court may not override the Commission's findings when those findings are supported by evidence sufficient to convince a reasonable mind to a fair degree of certainty. [492]
Argued November 17, 1982, before Judges ROGERS, WILLIAMS, JR. and CRAIG, sitting as a panel of three.
Appeals, Nos. 2550 C.D. 1979, 2551 C.D. 1979, 2552 C.D. 1979, 2553 C.D. 1979, 2554 C.D. 1979, 2555 C.D. 1979, 2556 C.D. 1979, 435 C.D. 1980, 436 C.D. 1980, 437 C.D. 1980, 438 C.D. 1980, 439 C.D. 1980, 440 C.D. 1980, 441 C.D. 1980, 442 C.D. 1980, 443 C.D. 1980, and 449 C.D. 1980, from the Orders of the State Civil Service Commission in the cases of Wallace G. Johnson, Appeal No. 2641; Rosauro C. Palileo, Appeal No. 2645; William M. Buck, Appeal No. 2639; Lisle E. Williams, Appeal No. 2638; Robert J. Sommer, Appeal No. 2648; Frank D. Cicarelli, Appeal No. 2661; John V. Sullivan, Appeal No. 2649; Norma Matisz, Appeal No. 2642; Samuel Livingston, Appeal No. 2637; Robert S. Niedzielka, Appeal No. 2644; Richard D. Ponzetto, Appeal No. 2646; Edwin A. Kist, Appeal No. 2657; Victor Reck, Appeal No. 2647; Ronald Walker, Appeal No. 2650; Robert Ivill, Appeal No. 2640; Charles Miller, Appeal No. 2643, and Martin L. Neaman, Appeal No. 2658.
Employees furloughed by the Department of Transportation. Employees appealed to the State Civil Service Commission. Appeals denied. Employees appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
T. Lawrence Palmer, McArdle, Caroselli, Spagnolli Beachler, with him Jay D. Glasser, Hollinshead and Mendelson, for petitioners.
Michael McCarey, with him Mark Hodgeman, Assistant Counsel, Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for respondent.
This is the consolidated appeal of seventeen furloughed or demoted regular status Pennsylvania Department of Transportation (DOT) employes (Petitioners) from Civil Service Commission (Commission) orders sustaining their furloughs, or demotions in lieu of furloughs, as proper under the Civil Service Act (Act).
Act of August 5, 1941, P.L. 752, as amended, 71 P. S. § 741.3 (f) and (s). These subsections provide:
(f) "Demotion" means a change [in status] to a position in a class carrying a lower maximum salary;
(s) "Furlough" means the termination of employment because of lack of funds or of work.
By memorandum dated July 1, 1977, the Secretary of Transportation (Secretary) notified District Engineers and Bureau Directors of the cancellation of DOT's federally, and state bond, financed twelve year highway construction and maintenance program (12-year program). The 12-year program was discontinued as a result of a decision of the Secretary to terminate future state bond financing because of DOT's inability to afford the increasing debt service. Following personnel studies and modifications in personnel requirements to reflect the 12-year program's cancellation, petitioners were among those either furloughed or demoted in lieu of furlough, effective June 30, 1978. This consolidated appeal from the Commission's orders upholding the adverse personnel actions followed.
Section 704 of the Administrative Agency Law, 2 Pa. C. S. § 704, requires this Court to affirm Commission adjudications unless constitutional rights are violated, errors of law are committed or necessary findings of fact are not supported by substantial evidence. Forbes v. PennDOT, 61 Pa. Commw. 641, 643, 434 A.2d 892, 894 (1981).
A "furlough" is defined by Section 3(s) of the Act, 71 P. S. § 741.3 (s), as "a termination of employment because of lack of funds or work." Further, DOT, as the Appointing Authority, has the burden of proving a prima facie case justifying Petitioners' furloughs. 4 Pa. Code § 105.15; Department of State v. Stecher, 74 Pa. Commw. 45, 47, 459 A.2d 851, 854 (1983). DOT has successfully met this burden.
Petitioners first contend that the Secretary's decision to cease selling state bonds, which financed (in conjunction with federal monies) the 12-year program, and the program's consequent discontinuance, absent legislatively mandated funding reductions, was an arbitrary act not necessitated by a lack of funds. The Commission's findings, however, ignoring the grounds for terminating the program's state bond financing, established only that a lack of funds resulted from the Secretary's decision to cease selling state bonds.
The uncontroverted testimony of DOT's Deputy Secretary for Highway Administration provided ample grounds underpinning the Secretary's decision to halt the program's state bond financing. The witness repeatedly indicated that DOT could not afford to pay the ever increasing debt service; and, without continued state bond financing, the 12-year program was discontinued for lack of funds. Thus, the Secretary's decision to halt bond sales for reasons of economy was both rational and legitimate, and neither this Court nor the Commission may substitute its judgment for that of department officials in matters relevant to departmental economy and efficiency. See, Vovakes v. Department of Transportation, 71 Pa. Commw. 3, 453 A.2d 1072 (1982); Department of Public Welfare v. Magrath, 14 Pa. Commw. 257, 321 A.2d 403 (1974).
Therefore, concluding that substantial record evidence supports the Commission's findings that financial considerations motivated Petitioners' furloughs, and that the Secretary's decision to terminate state bond sales because of DOT's inabiliy to afford ever increasing debt service payments was a rational and legitimate attempt to promote governmental economy, we reject Petitioners' first argument.
The Act's Phrase "lack of funds" is not synonymous with the term "bankruptcy." As we stated in Forbes, 61 Pa. Commw. at 644 n. 4, 434 A.2d at 894 n. 4, "[a] 'lack of funds' exists when insufficient revenue is available to meet all financial demands unless modifications are made in the system."
Petitioners next assert that their furloughs improperly resulted from "a department-wide pattern of manipulation, discrimination, and irregularities in the [performance evaluation rating] PER system." A PER is each employe's relative numerical rank derived from his regular service rating. 4 Pa. Code § 99.11-99.15; Collins v. PennDOT, 37 Pa. Commw. 292, 296, 390 A.2d 333, 335 (1978); and, an employe is subject to furlough, "if at the time he is furloughed, he is [the least senior employe] within the lowest quarter among all employes of the employer in the same class on the basis of their last regular service ratings." Section 802 of the Act, 71 P. S. § 741.802. Petitioners generally allege that the PERs of certain nondenominated, nonfurloughed DOT employes within their class were inflated by rating supervisors for non-merit reasons.
Section 905.1 of the Act, 71 P. S. § 741.905(a), provides as follows:
Prohibition of Discrimination.
No officer or employe of the Commonwealth shall discriminate against any person in recruitment, examination, appointment, training, promotion, retention or any other personnel action with respect to the classified service because of political or religious opinions or affiliations because of labor union affiliation or because of race, national origin or other non-merit factors. (Emphasis added.)
It is axiomatic that judging issues of credibility and resolving evidentiary conflicts are functions of the Commission and not this Court. Silvia v. Pennhurst Center, 63 Pa. Commw. 75, 78, 437 A.2d 535, 536 (1981). The Commission, simply, did not find Petitioners' broad allegations of department-wide irregularities in PERs to be credible. The Commission did find credible the testimony of DOT's personnel analyst that the challenged service ratings were properly determined in accordance with statute and regulations. Although Petitioners presented conflicting testimony, credibility determinations and evidentiary conflict resolution are for the Commission, id., and this Court may not override the Commission's findings where those findings are supported by evidence sufficient to convince a reasonable mind to a fair degree of certainty. Vovakes, 71 Pa. Commw. at 7, 453 A.2d at 1074.
Finally, those Petitioners reclassified from "rank and file" to management on October 17, 1977, and who simultaneously transferred from a nonsupervisory to a supervisory bargaining unit, and whose seniority for furlough purposes (in accordance with the then controlling collective bargaining agreement) was determined exclusively by their length of service in the management classification, assert that their furloughs were improper because the reclassification, notices failed to apprise them of their surrender of "rank and file" seniority.
Section 802 of the Act, 71 P. S. § 741.802, provides pertinently:
An employe shall be furloughed only if at the time he is furloughed, he is within the lowest quarter among all employe of the employer in the same class on the basis of their last regular service ratings, and within this quarter he shall be furloughed in the order of seniority unless there is in existence a labor agreement covering the employes to be furloughed, in which case the terms of such labor agreement relative to a furlough procedure shall be controlling. . . . (Emphasis added.)
Section 741.950 of the Act, 71 P. S. § 741.950, requires that an employe in the classified service be provided with written notice of any personnel action taken with respect to that employe. Assuming, without deciding, that reclassification is a personnel action for which written notice is required, neither Section 741.950 of the Act nor the Commission's regulations at 4 Pa. Code § 105.3 require that Petitioners be apprised of the myriad consequences of this personnel action.
Section 105.2(a) of the Commission's regulations, 4 Pa. Code § 195.2(a), which denominates fourteen separate personnel actions for which written notice is required, does not include "reclassification."
We note that each reclassification notice contained the name and telephone number of a responsible DOT official to which Petitioners could have addressed additional inquiries.
Accordingly, we affirm the orders of the Commission.
ORDER
AND NOW, this 12th day of October, 1983, the orders of the State Civil Service Commission in the above-captioned matter are affirmed.