Summary
In Miller v. Department of Transportation, 59 Pa. Commw. 446, 447, 429 A.2d 1278, 1279 (1981), we held that the test to be applied in such situations "is whether the functions performed by the two are adequately separate so that there is no actual prejudice."
Summary of this case from Bd. of Pen. Ret. et al. v. SchwartzOpinion
Argued April 9, 1981
June 3, 1981.
Public employes — Demotion for political reasons — Job misconduct — Personal phone calls — Due process — Commingling of adjudicatory and prosecutorial functions.
1. When substantial evidence establishes that action demoting an employe was based upon job-related factors including the fact that personal phone calls continued to interfere with the employe's performance despite warnings, the demotion is proper and cannot be held to have resulted improperly from the political affiliation of the employe. [447]
2. Due process principles are not violated when two attorneys for the same agency appear in different roles in an employe demotion proceeding, when the functions performed by the attorneys are adequately separate so as to avoid actual prejudice. [447-8]
Argued April 9, 1981, before Judges MENCER, CRAIG and PALLADINO, sitting as a panel of three.
Appeal, No. 1582 C.D. 1980, from the Order of the Department of Transportation, in case of In Re: Joan Miller, dated June 10, 1980.
Employe demoted by Department of Transportation. Hearing requested. Hearing request denied. Employe appealed to the Commonwealth Court of Pennsylvania. Case remanded. ( 38 Pa. Commw. 361) Hearing held. Demotion action sustained. Employe appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
John J. Morgan, for petitioner.
Louis G. Cocheres, Assistant Attorney General, with him Ward T. Williams, Chief Counsel, and Harvey Bartle, III, Attorney General, for respondent.
Petitioner Joan Miller, an employee of the Department of Transportation, has appealed from an order of the Department of Transportation sustaining her demotion by the department from Clerical Supervisor II to Clerk-typist I.
Miller charges she was demoted for political reasons, thus violating her First and Fourteenth Amendment rights under Branti v. Finkel, 445 U.S. 507 (1980) and Elrod v. Burns, 427 U.S. 347 (1976). Those decisions protect public employees if they can show that a change of status, such as discharge, was due solely to the employee's political affiliation. Here there is substantial evidence from the department's witnesses, annual evaluation reports, and a memorandum citing warnings to petitioner for frequent personal phone calls interfering with her job performance, that petitioner's demotion was for job-related factors.
Petitioner also contends that her due process rights were violated because the Commonwealth attorney acting as legal counsel to the hearing examiner came from the same agency as the attorney representing the respondent department.
Where two attorneys of the same agency appear in different roles in the same proceeding, due process is not per se violated. See Pennsylvania State Association of Township Supervisors v. Insurance Department, 50 Pa. Commw. 204, 412 A.2d 675 (1980). The focus is whether the function performed by the two are adequately separate so that there is no actual prejudice.
In a virtually identical case, we held the functions of one staff attorney as prosecutor before the Board of Nursing Examiners and two other staff attorneys acting as counsel for the board to be adequately separate. Tighe v. State Board of Nurse Examiners, 40 Pa. Commw. 367, 397 A.2d 1261 (1979).
Hence, after reviewing the proceedings before the hearing examiner in this case, we cannot find an unconstitutional commingling of the attorneys' functions. Petitioner has not specified any actual prejudice. Pennsylvania Human Relations Commission v. Thorp, 25 Pa. Commw. 295, 361 A.2d 497 (1976).
The order is affirmed.
ORDER
AND NOW, June 3, 1981, the order of the Pennsylvania Department of Transportation in the case of In Re Joan Miller, dated June 10, 1980, is affirmed.