11 Pa. Commw. 1 | Pa. Commw. Ct. | 1973
Opinion by
Joseph J. Bleilevens here appeals from an adjudication of the State Civil Service Commission dismissing his appeal from the action by the Payette County Board of Assistance of removing him from Ms position as Public Welfare Admimstrator V, regular status. Mr. Bleilevens’ position with the Payette County Board of Assistance, which he assumed in 1964, was better described by the name “Executive Director” by which his position was titled until the Department of Welfare
As Executive Director or Administrator V, Mr. Bleilevens, under his board, was in general charge of the state’s welfare programs in Payette County. In addition to supervising the work of about 100 employes, he was required to form judgments upon and to interpret for his staff and the County Board the statutes and agency rules and regulations concerning the board’s work. His responsibilities included that of recommending employes for promotion, in accordance with law and rules and regulations relating to the civil service. He was appointed to his position by the County Board and subject to removal therefrom by it. However, under the Civil Service Act of August 5, 1941, P. L. 752, Section 807, as amended, 71 P.S. §741.807, he was not subject to removal “except for just cause.”
The issue here is whether the Pennsylvania Civil Service Commission’s adjudication sustaining the County Board’s action is supported by substantial evidence. The rules of the Civil Service Commission, 4 Pa. Code, Section 105.15(a), impose upon the appointing authority the duty to go forward in the establishment of the charges on which its personnel action is assertedly based and in so doing to establish a prima facie case in justification of that action. After a careful examination of the record we have concluded that the appointing authority did not support its charges against the appellant at the Civil Service Commission hearing, and that the Commission’s adjudication sustaining the County Board’s action is not supported by substantial evidence, as the Administrative Agency Law requires. Act of June 4,1945, P. L. 1388, Section 44, as amended, 71 P.S. §1710.44.
The reasons given Mr. Bleilevens for his removal were: administrative decisions displaying bad judgment; opposition to regional recommendations and De
“9. Appellant used poor judgment in the handling of the homemaker’s case.
“10. Appellant used his own method of personnel procedure rather than one proposed by the Department.
“11. Appellant did not follow policy outlined by the Affirmative Action Program.
“12. Appellant opposed regional recommendations regarding transportation allotments.
“13. Appellant became involved in an automobile accident involving an employe and a bank official.
“14. Appellant was insubordinate when he tried to fill a position by transfer when he had been specifically informed to fill no vacancies in that category.
“. . . Appellant promoted persons without notifying the Board of all the condidates’ qualifications. . . . The Commission accepts appointing authority’s evidence that appellant had change sheets and Affirmative Action forms approved before his Board took action on the appointment . . . although appellant’s own witness stated this was never done. . . . Appellant acted contrary to the wishes of his Board in the Davis case. Appellant does not have the confidence of the present Board. . . .”
Although the County Board voted to remove Mr. Bleilevens, it was asked to do so by senior officials of the Department of Welfare, two of whom attended the meeting of the Board at which the removal was voted and who there presented the case against Mr. Bleilev
The Hearsay Rule is not a technical rule of evidence but a basic, vital and fundamental rule of iaw which ought to be followed by administrative agencies at those points in their hearings when facts crucial to the issue are sought to be placed upon the record. Indeed, an adjudication of an administrative agency may not be founded wholly on hearsay evidence, although such evidence may be admitted in cases made out by circumstantial evidence, if not inconsistent with the undisputed facts, for the additional light it may throw on the matter. SKF Industries, Inc. v. Cody, 2 Pa. Commonwealth Ct. 19, 276 A. 2d 356 (1971); Giordano v.
“9. Appellant used poor judgment in the handling of the homemaker’s case.”
The regional staff of the Department had recommended the dismissal of an employe who was alleged to have converted to her own use the sum of $36.00 entrusted to her by a welfare client for the payment of a bill owed by the client to another. The County Board heard the facts of the case and rather than dismissing the employe suspended her without pay and ordered her to make restitution of the $36.00. The Department’s witnesses complaint seems to be that Mr. Bleilevens improperly resurrected the matter at a subsequent board meeting and that the Board then rescinded its order of restitution of the $36.00. The appellant’s evidence, including the Board’s minutes, showed that it was the employe’s supervisor who requested that the Board reconsider the order of restitution because he was satisfied that the employe had not in fact embezzled the client’s money. It was not Mr. Bleilevens but the County Board which refused to accept the Region’s recommendation of dismissal; it was not Mr. Bleilevens who resurrected the matter, but the employe through her supervisor; and the record strongly indicates that
“10. Appellant used his own method of personnel procedure rather than one proposed by the Department.”
We are unable to discern with certainty the facts in the record upon which this finding was based. Ms. Britton who, we repeat, had no personal knowledge in the matter, testified that Mr. Bleilevens insisted that personnel actions be discussed in open meetings, “thus frequently exposing information of a confidential nature to the public and the other staff.” Ms. Emery, on the same subject, complained not that Mr. Bleilevens discussed personnel matters in public meetings but that he did so in staff conferences which included persons whom she believed were not concerned with the subjects under discussion. It is apparent that Ms. Britton was retelling inaccurately what Ms. Emery had apparently learned from others. In any case, this matter concerned admiuistrative procedures and there is no evidence that the appellant violated any rule or regulation of the Department or any order of a superior officer.
“11. Appellant did not follow policy outlined by the Affirmative Action Program.”
We find nothing factual in the record to substantiate this finding. The Affirmative Action Program is a name given to a statement of policy by the Governor providing, as we understand it,
The appellant’s evidence demonstrates that when he was acting as Executive Director and Administrator V of the County Board the percentage of his employes who were members of minorities was significantly higher than the percentage of persons who were members of minorities in Payette County.
The Director of Social Programs also faulted Mr. Bleilevens because members of the Payette County staff prepared and circulated publicly a petition critical of the Department of Welfare’s so-called sensitivity training sessions for employes. Although the record does not indicate either that the appellant joined in the petition or had any part in its circulation, Mr. Bleilevens’ superiors would hold him responsible. Possibly in deference to the holding of Chalk Appeal, 441 Pa. 376, 272 A. 2d 457 (1971), the Department contends that it did not object to the petition but the failure of its authors to “submit his [sic] objections through channels.” Challo held not only that the public employe may criticize, but that he may not be removed by reason of assumed, but not proved, detriment to the service caused thereby. There is no evidence that the petition or its circulation caused the slightest harm to the Department or its sensitivity program.
“12. Appellant opposed regional recommendations regarding transportation allotments.”
This finding refers to Mr. Bleilevens’ refusal to pay from funds entrusted to his Board the transportation expenses of a welfare recipient, a college graduate resident in Fayette County attending graduate school in Pittsburgh. Mr. Bleilevens and an assistant in his office consulted the regulations of the Pennsylvania De
“13. Appellant became involved in an automobile accident involving an employe and a bank official.”
This finding refers to an incident not related to his employment in which Mr. Bleilevens acted entirely properly and which the Department’s counsel conceded at argument was no cause for removal.
“14. Appellant was insubordinate when he tried to fill a position by transfer when he had been specifically informed to fill no vacancies in that category.”
The personnel office of the Department had advised Mr. Bleilevens that the ratio of caseworkers to assistant technicians of Fayette County office was too high and that as positions became vacant they should be filled with persons to be designated assistant techni
“Appellant promoted persons without notifying the Board of all the candidates’ qualifications.”
We have searched the record in vain for any evidence supporting this finding.
“The Commission accepts the appointing authority’s evidence that appellant had change sheets and Affirmative Action forms approved before the Board took action on the appointment.”
This finding is factual but highly disingenuous. It relates to the incident of the promotion by the Board of a male, instead of a female, staff member. Three candidates for the promotion had been placed before the Board for its consideration, two men and one woman, and one of the men was recommended by Mr. Blei
“Tbe appellant acted contrary to tbe wishes of bis Board in tbe Davis case.”
Tbis finding is factually inaccurate. In January 1971 tbe Fayette County Board promoted a Mr. Davis to a vacancy. It was then ascertained that tbe terms of some of tbe assumed members wbo acted at that meeting bad expired. A new meeting was held with tbe vacancies filled by properly qualified persons and that Board promoted someone other than Mr. Davis. One of tbe Department’s witnesses, testifying as to hearsay, stated that Mr. Bleilevens at tbe second meeting recommended tbe person promoted at that time. Hence, tbe only action Mr. Bleilevens is shown to have taken in tbis entire matter was to recommend to tbe properly constituted Board tbe promotion of someone other than a person chosen by tbe improperly constituted Board. He was surely not required to carry out tbe wishes of an illegally constituted Board or to refrain from performing bis duty to make recommendations to tbe lawful body.
*13 “Appellant does not have the confidence of the present Board.”
Of course, if the appointing authority’s lack of confidence is a cause for removal, the civil service system affords no protection whatsoever. This unfortunate finding provides, however, the occasion to remark that the Fayette County Board, only two months before the meeting at which the Deputy Secretary of Welfare for the Western Region and the Regional Director of Social Programs insisted on Mr. Bleilevens’ removal, rated its Executive Director as excellent in work habits, very good in a number of other factors and good in implementing the Affirmative Action Program. This and the Chairman’s testimony plainly indicates that Mr. Bleilevens’ difficulties were not with his Board but with some officials of the Department of Welfare. This is pointed up sharply by the incident of the Department’s order that the Fayette County Board pay the transportation expenses of a graduate school student. The Department contends that it was insubordinate of the appellant not to comply with its informal order to make the payments and that it is irrelevant that Mr. Bleilevens’ action was based upon a pertinent ruling of another competent department of state government forbidding such a payment. Recent events at the highest level of government establish that the public is ill-served by employes who execute the will of their superior officers in disregard of their duties as prescribed by law. Further, it is the County Board’s function to “Administer public assistance in the County, and determine the eligibility for assistance of applicants and continued eligibility for assistance of persons receiving the same in accordance with law and the rules, regulations and standards established by the department.” Act of June 13, 1967, P. L. 31, Art. 14, §419, 62 P.S. §419.
And now, this 7th day of November 1973, the order of the Civil Service Commission dated March 15, 1973 is set aside and the appellant, Joseph J. Bleilevens, is ordered reinstated to his position as Administrator V, regular status, with the Department of Welfare as of December 21, 1972, the effective date of his removal.
The Chairman of the County Board was called as a witness for the Department but had nothing derogatory to say of Mr. Bleilevens’ work.
The appellant’s supervisors seem to interpret the Affirmative Action Program to require that the persons whom it is meant to protect against discrimination should be given preference in promotion in public employment Such an interpretation would be contrary to law and contrary to the Program’s terms, at least as the