90 Pa. Commw. 359 | Pa. Commw. Ct. | 1985
Opinion by
Petitioner, the Pennsylvania Department of Education (Department), appeals here from an adjudication and order of the State Civil Service Commission (.Commission) invalidating the furlough of Bespondent, John P. Conmy, from his position as Institutional Business Manager II at the Scranton State School for the Deaf (School).
At the «ame time, the School was having financial difficulties. The Department initially projected that the School would have a deficit of $350,000 for the 1981- 82 school year. On January 29,1982, the Department imposed a hiring freeze on the School. With the aid of Department rebudgeting efforts and the implementation of a number of cost-saving measures, the School was able to lower its deficit for the 1981-82 school year to $10,000, which was carried over to the 1982- 83 school year. Although the School’s budget for the 1982-83 school year was 6% higher than it had been in 1981-82, the School’s real operating budget decreased because of cost increases resulting from inflation. The Department nonetheless instructed the School that under no circumstances was the School to exceed its allotted funds for the 1982-83 school year.
In the School’s initial plan of reorganization accompanying early proposals for the 1982-83 budget, Dr. Severos recommended replacing the position of Institutional Business Manager II with the lower classified position of Fiscal Assistant. When told of this proposed change, Respondent stated that he would accept no position lower than Accountant II, a position which was classified higher than Fiscal Assistant but lower than Institutional Business Manager II and which Respondent had previously held for eight years at Fairview State Hospital. The position of Fiscal Assistant was not approved by the Governor.
By letter dated July 28, 1982, Appellant was furloughed from his position as Institutional Business Manager II, regular status, effective at the close of business August 31, 1982. At that time, the hiring freeze of January 29, 1982 was still in effect at the School and the position of Accountant II had not been created or approved. Shortly after Respondent’s termination, William O’Neill ¡a Department employee with the classification of Accountant II arrived at the School on indefinite special assignment. Mr. O’Neill performed many of Respondent’s duties, but also allegedly was to train Dr. Severns and other employees at the School on various accounting procedures so that they could perform Respondent’s remaining duties. The Department, not the School, was responsible for paying Mr. O’Neill. As of November 17, 1982, the ■time of the hearing before the 'Commission, Mr. O’Neill was still working at the School, the hiring freeze there was still in effect, and no final determination had been made concerning what, if any, new positions would be created at the School to replace the position of Institutional Business Manager II.
Respondent appealed his furlough to the Commission, which concluded after a hearing that the furlough was in violation of the Civil Service Act
Under Section 704 of the Administrative Agency Law,
Petitioner, correctly noting that a “furlough” is defined by Section 3(s) of the Civil Service Act (Act)
With respect to the issue of whether a lack of work existed, the mere elimination of a position is not sufficient to warrant a furlough; consideration must be given to whether or not there exists an actual lack of work for people in the same classification or status. Silverman v. Commonwealth Department of Education, 70 Pa. Commonwealth Ct. 444, 454, 454 A.2d 185, 190 (1982). In its adjudication, the Commission pointed out that the School’s second reorganization plan stated that an Accountant II would be necessary upon the elimination of the position of Institutional Business Manager II, that the duties to be performed by the Accountant II would include primarily those
Petitioner also argues that the 'Commission erred in holding that Respondent was not terminated for lack of funds. The Commission based its conclusion that no lack of funds existed on evidence that the second reorganization plan submitted by Petitioner included the creation of seven new positions, that four of these positions were filled, and that the testimony
Moreover, as noted, soon 'after the Department furloughed Respondent, who was -both qualified and willing to work as an Accountant II, Mr. O’Neill, an Accountant II, arrived at the School on indefinite special assignment and took on many of Respondent’s responsibilities. Although arguably tbe Department somehow may have saved money through such an arrangement, tbe Department offered no evidence to tbat effect.
Affirmed.
Order
And Now, March 7, 1985, tbe adjudication and order of tbe State Civil Service Commission dated, April 29, 1983, are hereby affirmed.
Act of August 5, 1941, P.L, 752, as amended, 71 P.S. §§741.1-741.1005,
2 Pa. O. S. §704.
71 P.S. §741.3(s).
4 Pa. Code §105.15.
We are aware of our Supreme Court’s recent decision in Commonwealth of Pennsylvania, Department of State v. Stecher, 506 Pa. 203, 484 A.2d 755 (1984), but find that it is clearly distinguishable. Most importantly, in the present case, Respondent was able to work as an Accountant II and the reorganization plan under which Respondent was terminated called for the creation of an Accountant II position upon the elimination of the position of Institutional Business Manager II. Moreover, after Respondent’s furlough, Mr. William O’Neill, an Accountant II, arrived at the School and performed many of Respondent’s duties. Under such circumstances, the Department has not met its burden of showing a lack of work.
We note that while the Commission made no specific findings as to the role of Mr. O’Neill, his performance of many of Respondent’s duties, as noted, supports the finding that there was need for Respondent’s services and, therefore, his furlough could not he justified on the basis of lack of work.