Opinion
No. 39 C.D. 2011
09-12-2011
Dennis B. Pollard, Petitioner v. State Civil Service Commission (Department of Labor and Industry), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JOHNNY J. BUTLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE PELLEGRINI
This opinion was reassigned to the authoring judge on August 2, 2011.
Dennis B. Pollard (Pollard) petitions pro se for review of an order of the State Civil Service Commission (Commission) ordering the removal of Pollard's name from any and all eligible lists by granting the List Removal Request filed by the Department of Labor and Industry (Department) for the position of Unemployment Compensation (UC) Appeals Referee for a period of three years retroactive to November 3, 2010. Finding no error in Commission's decision, we affirm.
The facts are not in dispute. In 2010, while employed by the Department as a Workforce Development Supervisor, Pollard took the UC Appeals Referee civil service examination. The Department later received a certification list from the Commission of eligible candidates for the UC Appeals Referee class title which included Pollard's name. Pollard responded to various Notices of Availability for Referee positions across the Commonwealth and interviewed with the Department's Philadelphia Office. On September 12, 2010, Pollard completed a Personal Interview Form for the position of UC Appeals Referee. On this form, he indicated that he had been convicted of a criminal offense and provided supplemental information indicating that in August 2001, he pled guilty to one count of possession of pornography involving a minor. On September 28, 2010, the Department notified Pollard in writing that it would be requesting that the Commission remove his name from the certification list of eligible candidates for the UC Appeals Referee class title because of his criminal conviction. Pollard sent a written objection to the Department, which the Department reviewed.
In 1998, Pollard ordered a pornographic videotape containing a minor via U.S. mail. Shortly after the videotape was delivered, U.S. Customs Service executed a search warrant at Pollard's residence and confiscated the unopened package containing the videotape. In 2001, Pollard pled guilty to an information charging him with one count of possession of child pornography in interstate commerce, 18 U.S.C. § 2252A(a)(5)(B), which applies to any person who "knowingly possesses, or knowingly accesses with intent to view, any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography that has been mailed, or shipped or transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in or affecting interstate or foreign commerce by any means, including by computer." Pollard was sentenced to five years probation and a fine for this offense.
On November 3, 2010, the Department submitted a formal List Removal Request (Request) to the Commission contending that Pollard's employment in the quasi-judicial classification of UC Appeals Referee would be inappropriate due to his criminal conviction. Agreeing with the Department, the Commission granted the Department's Request and ordered that Pollard's name be removed from all eligibility lists for the position of UC Appeals Referee for a period of three years. This appeal followed.
Because the Commission's removal of Pollard's name from the eligibility lists is a discretionary act of an agency, our review is limited to determining whether there has been a manifest and flagrant abuse of discretion or purely arbitrary execution of the agency's functions or duties. Gwynedd Development Group, Inc. v. Department of Labor and Industry, Bureau of Labor Standards, 666 A.2d 365, 369 (Pa. Cmwlth. 1995) (citing Lynch v. Urban Redevelopment Authority of Pittsburgh, 496 A.2d 1331 (Pa. Cmwlth. 1985)). An agency commits an abuse of discretion if it bases its conclusions upon wholly arbitrary grounds, in capricious disregard of competent evidence. Gwynedd, 666 A.2d at 369-70 (citing Lily Penn Food Stores, Inc. v. Pennsylvania Milk Marketing Board, 472 A.2d 715 (Pa. Cmwlth. 1984)). The mere fact that we, as the reviewing court, may have a different opinion is not sufficient to interfere with the agency's action. --------
Pollard attempts to raise numerous arguments in his brief to this Court, including the arguments that his removal from the eligibility lists for the position of UC Appeals Referee violates the U.S. and Pennsylvania Constitutions and rises to the level of disparate impact racial discrimination against Black males. However, as the Department points out, Pollard failed to raise these arguments concerning constitutional violations and racial discrimination in his petition for review. The section of Pollard's petition for review entitled "Objections to the Determination" reads, in its totality, as follows:
9. Petitioner objects to [the Commission's] determination. Petitioner alleges that [the Commission]
committed abuse of discretion and error of law in granting Department's request to remove Petitioner from the UC Appeals Referee civil service list for the following reasons:(Petition for Review at 2-3).
(a) [The Commission] erred by failing and refusing to enunciate a legally permissible reason that explains why Petitioner's employment as a UC Appeals Referee would be inappropriate due to his criminal conviction.
(b) [The Commission] erred by failing to dismiss Department's removal request pursuant to Management Directive 580.34, as amended.
(c) [The Commission] erred by failing to rule in Petitioner's favor pursuant to Management Directive 580.34 § 7(a)(2)(a).
(d) [The Commission] erred by failing to properly apply, or in the alternative misapplied, Pennsylvania law, specifically 18 Pa. C.S.A. § 9125(b), which limits an employer's ability to use a criminal conviction in the hiring process.
(e) [The Commission] erred by allowing Department to advance oral arguments not previously presented in its written filings; thus, not putting Petitioner on notice that Department intended to deviate from its original rationale for seeking Petitioner's civil service list removal.
Rule 1513(d) of the Pennsylvania Rules of Appellate Procedure requires that an appellate petition for review contain, among other things, "a general statement of the objections to the order or other determination." Pa. R.A.P. 1513(d). Accordingly, this Court has repeatedly held in various contexts that failure to raise an issue in a petition for review or failure to brief an issue raised in a petition for review, even by a pro se petitioner or claimant, constitutes waiver of that issue. See Maher v. Unemployment Compensation Board of Review, 983 A.2d 1264, 1267 (Pa. Cmwlth. 2009) (citing Deal v. Unemployment Compensation Board of Review, 878 A.2d 131, 132-33 (Pa. Cmwlth. 2005)); Met-Ed Industrial Users Group v. Pa. Public Utility Commission, 960 A.2d 189, 201 n.18 (Pa. Cmwlth. 2008) (citing Doren v. Mazurkiewicz, 695 A.2d 967 (Pa. Cmwlth. 1997)); Jimoh v. Unemployment Compensation Board of Review, 902 A.2d 608, 611 (Pa. Cmwlth. 2006). Because Pollard failed to raise the issues of alleged racial discrimination and the constitutionality of the Department's Request in his petition for review, they are waived. Likewise, because Pollard failed to brief issues (d) and (e) from his petition for review, those issues are also waived.
The sole argument that Pollard properly preserves on appeal is his contention that the Commission erred as a matter of law by failing to dismiss the Department's Request because the reason for his removal from the eligibility lists was not merit-based as required by Management Directive 580.34. This particular Management Directive provides the policy and procedure that must be followed when removing an eligible candidate from a civil service list. It states, in pertinent part, that in order to remove an eligible candidate from a list, the appointing authority must "[b]ase objections to the eligibility for certification or appointment of [a candidate] on merit-related criteria using the procedures indicated in Section 7 of this directive." Management Directive 580.34 § 6a(2). Section 7(a) of the Directive states, "[t]he basis for any request to remove the name of [a candidate] from a certification must be merit-related; e.g., the reason must touch upon the [candidate's] competency and ability to perform in the position for which the eligible list has been prepared." Management Directive 580.34 § 7a(2)(a).
The Department complied with the requirements of the Directive. As the Department explained to Pollard and the Commission, a UC Appeals Referee is required to sign and abide by the Referee Code of Conduct, which mandates avoiding impropriety in all activities as well as avoiding the appearance of impropriety in all activities. This Code of Conduct applies to all UC Referees at the onset of their employment. We agree with the Department that Pollard's guilty plea to possession of child pornography calls into question his ability to meet the standard of avoiding the appearance of impropriety and directly impacts his ability to perform the job at issue. The Department provided the following reason for requesting Pollard's removal:
An employee in the position of a UC Appeals Referee shall participate in establishing, maintaining, and enforcing high standards of conduct and shall personally observe those standards of conduct so that the integrity and independence of the UC Appeals System will be preserved. This position decides questions of fact and law for the resolution of disputes and is a highly visible symbol of the Department of Labor & Industry and its UC Appeals System under the rule of Law. UC Appeals Referees are required to fairly and impartially adjudicate terminations, which include discharge for violation of anti-pornography rules or arrest due to possession of child pornography.
The Department has concluded that Mr. Pollard's criminal conviction directly touches upon the responsibilities needed to uphold a UC Appeals Referee and raises concerns about his past impacting his ability to adhere to the Code of Conduct for Pennsylvania UC Referees . . . which he would be required to sign and abide by. Specifically, the Code of Conduct requires UC Appeals Referees to not only avoid impropriety, but also the appearance of impropriety in all activities, including
respecting and complying with the law and acting at all times in a manner that promotes public confidence in the integrity and impartiality of the UC Appeals System.(Notes of Testimony (N.T.), December 9, 2010, Commonwealth Exhibit A at 2). As the Department notes, Pollard would not be able to escape the appearance of impropriety when adjudicating cases involving terminations from employment due to violation of an employer's anti-pornography rules or arrests due to possession of child pornography. Pollard's criminal conviction for possession of child pornography could result in his being fired from a UC Appeals Referee position and directly impacts the appearance of impropriety. A candidate, such as Pollard, for a UC Appeals Referee position must meet the same standards as someone already employed as a UC Appeals Referee. As the Commentary of the Referee Code of Conduct states, "[p]ublic confidence in the UC Appeals System is eroded by irresponsible or improper conduct by UC Referees." Id. Therefore, the Department provided a merit-based reason for Pollard's removal from the eligibility lists in compliance with Management Directive 580.34, and the Commission did not abuse its discretion by removing Pollard from the eligibility lists for three years.
Accordingly, the Commission's order is affirmed.
/s/_________
DAN PELLEGRINI, Judge Judge Butler concurs in the result only.
ORDER
AND NOW, this 12th day of September , 2011, the order of the State Civil Service Commission, dated December 17, 2010, is affirmed.
/s/_________
DAN PELLEGRINI, Judge