Opinion
Argued June 4, 1981
September 14, 1981.
Civil service — Scope of appellate review — Violation of constitutional rights — Error of law — Capricious disregard of competent evidence — Discrimination — Burden of proof — Civil Service Act, Act of August 5, 1941, P.L. 752, — Misappropriation of public funds.
1. Review by the Commonwealth Court of Pennsylvania of a decision of the State Civil Service Commission where a claim of removal based upon discrimination or non-merit factors is involved, is to determine whether constitutional rights were violated, an error of law was committed or competent evidence was capriciously disregarded. [574-5]
2. A provisional employe charging that his removal was based upon discrimination or non-merit factors violative of provisions of the Civil Service Act, Act of August 5, 1941, P.L. 752, has the burden of going forward with evidence to support such charges. [575]
3. When charges against a provisional employe holding a sensitive position concerning the misappropriation of public funds and firearms violations form the basis for his removal, such removal may properly be found to be based upon conduct reducing job effectiveness and diminishing public respect for the public employer and not upon non-merit factors. [575-6]
Argued June 4, 1981, before Judges ROGERS, BLATT and PALLADINO, sitting as a panel of three.
Appeal, No. 1418 C.D. 1979, from the Order of the State Civil Service Commission in case of Christopher C. Quarles, Jr. v. Department of Transportation, Appeal No. 2620.
Employe removed from position by Department of Transportation. Employe appealed to the State Civil Service Commission. Action sustained. Employe appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
William M. Overton, Jr., for petitioner.
Louis G. Cocheres, with him Ward T. Williams, Chief Counsel, for respondent.
The appellant, Christopher C. Quarles, appeals a decision of the State Civil Service Commission (Commission) upholding an action of the Department of Transportation (DOT) removing him from his position as a provisional employe.
The appellant, who was an Equal Opportunities Development Specialist IV engaged in working with employer-contractors so as to encourage minority employment on state road contracts, was charged with and arrested for the misdemeanor offenses of misappropriating funds of an agency receiving public funds and violating the firearms laws. A printed newspaper story reported these facts and identified the appellant as an employe of the DOT, and a DOT representative attended the preliminary hearing at which the appellant was held for court. He then recommended that the appellant be dismissed, and the Secretary of DOT approved this recommendation, removing the appellant as of September 22, 1978.
Because the appellant was a provisional employe, his only entitlement to a hearing before the Commission was pursuant to Section 951(b) of the Civil Service Act which requires an allegation that the removal have been discriminatory or based upon non-merit factors. The Commission determined in a May 31, 1979 decision that the appellant's removal was not so based and that he had failed to meet his requisite burden of proof or to establish a prima facie case of Section 905.1 discrimination. It therefore dismissed his appeal.
Act of August 5, 1941, P.L. 752, added by the Act of August 27, 1963, P.L. 1257, 71 P. S. § 741.951b.
71 P. S. § 741.905a.
Section 905.1 of the Civil Service Act controls in this case and 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 affiliations or because of race, national origin or other non-merit factors.
Our scope of review of a State Civil Service Commission's adjudication where a provisional or non-regular employe claims removal due to discrimination or other non-merit factors is limited to determination of whether or not the constitutional rights of the appellant have been violated, an error of law has been committed, or competent evidence has been capriciously disregarded. See Laws v. Philadelphia County Board of Assistance, 50 Pa. Commw. 340, 412 A.2d 1377 (1980); Skrowronski v. Governor's Council on Drug and Alcohol Abuse, 28 Pa. Commw. 236, 368 A.2d 852 (1977). And, a civil service employe alleging discrimination by reason of personnel action taken by a state agency bears the burden of going forward with evidence to support his charges that non-merit factors motivated such agency action. Snipas v. Department of Public Welfare, 46 Pa. Commw. 196, 405 A.2d 1366 (1979); Tempero v. Department of Environmental Resources, 44 Pa. Commw. 235, 403 A.2d 226 (1979).
Section 807 of the Civil Service Act, 71 P. S. § 741.807 requires that "regular" employes may not be removed except for "just cause." Probationary, provisional or non-regular employee may be removed without a showing of "just cause."
The appellant contends that there was no showing below which would lead to a conclusion that the charges against him reflected adversely on state government, or were related to, hampered, or would tend to hamper the discharge of his duty, and that his removal was therefore due to discrimination or non-merit factors. He offers only mere conclusory allegations of discrimination, however, and DOT's conclusion, which was sustained by the Commission, that his effectiveness in his position was seriously hampered by the publicity and nature of the charges leading to his arrest, was a legitimate one. Keeping in mind that the appellant's duties entailed extensive efforts to try to bring minority contractors and employers into state highway construction projects, it is not inconceivable nor the result of strained logic imbued with discriminatory intent, to conclude that the charges lodged against him, especially the one alleging misappropriation of public funds for personal use, might suggest a breach of the public trust which would seriously reduce his job effectiveness while simultaneously diminishing public respect and confidence in DOT and in state government. See Brown v. PennDot, 34 Pa. Commw. 461, 383 A.2d 978 (1978).
We will therefore affirm the Commission's order upholding this appellant's removal.
ORDER
AND NOW, this 14th day of September, 1981, the order of the State Civil Service Commission in the above-captioned matter is hereby affirmed.