9 Pa. Commw. 341 | Pa. Commw. Ct. | 1973
Lead Opinion
Opinion by
On September 10, 1969, the Executive Board of the Commonwealth adopted a resolution which provided in pertinent part:
“Resolved, That notwithstanding the action of the Executive Board, dated July 30, 1969, approving a general salary increase for State employes, effective Au
“Resolved, That the provisions of this resolution shall not apply to physicians. . . .”
Attorneys were also excepted from the general limitation of $25,000 per year by a resolution adopted September 8, 1970.
As a result of these Executive Board resolutions, the employe was on two occasions denied a full 5% general pay increment given to Commonwealth employes. Subsequently, when employe was promoted to Highway District Engineer III, an increment engendered by the promotion was denied for the same reason. In each instance, no relief was sought by employe.
On August 10, 1972, employe became eligible for a merit increment as provided by the Personnel Rules of the Executive Board, 4 Pa. Code §27.12. When this increment was denied as a result of the resolutions noted above, employe appealed to the Civil Service Commission, alleging a violation of Section 905.1 of the Civil Service Act, Act of August 5,1941, P. L. 752, as amended, 71 P.S. §741.905a. Section 905.1 provides: “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.”
This is not the first time that the validity of the September 10, 1969 Resolution of the Commonwealth Executive Board has been challenged. It was challenged almost immediately by an employe appealing to the State Civil Service Commission which, with a divided Commission, dismissed the appeal. The employe appealed to this Court, raising the same legal issues here involved. The Commonwealth, by stipulation filed, agreed that the appeal was well taken and that the State Civil Service Commission’s order should be reversed. Pursuant to that stipulation, this Court reversed the order and restored the salary of the employe. See Cohen v. State Civil Service Commission, No. 797 T.D. 1970.
This was followed by separate appeals of four employes to the State Civil Service Commission. These four appeals, following the precedent established in the Cohen case, were all decided in favor of the employes by a unanimous Commission and were not appealed by the Commonwealth. The adjudications in these four cases were made a part of this record and were incorporated by reference in the adjudication in this case by the Commission.
While these five decisions are not binding on this Court, nevertheless, they are persuasive and the arguments of the appellant lose some of their force by the fact that the exact opposite position has been stipulated
We must initially resolve the question of the Commission’s jurisdiction to consider the appeal. As Section 905.1 proscribes discrimination with respect to “personnel actions,” the issue is whether the denial of a merit increment, under authority of an Executive Board resolution, is a “personnel action” within the meaning of Section 905.1.
The Executive Board is clearly empowered by Section 709 of the Administrative Code, Act of April 9, 1929, P. L. 177, as amended, 71 P.S. §249, to “. . . standardize all titles, salaries and wages of persons employed by the administrative departments. . . .” Appellant persuasively argues that the resolution establishing a new maximum salary is no more a personnel action than the adoption of and changes in the compensation plan itself.
The Commonwealth, however, has in effect created two compensation plans. It has established a system of pay ranges, 4 Pa. Code §14.1; assigned the appropriate pay range to each job classification, 4 Pa. Code §19.1; and provided for pay increments at certain time intervals and for promotions, 4 Pa. Code §27.11 et seq.
In addition, the Board has interposed by resolution a new maximum salary, bearing no rational relation to the aforementioned compensation plan and which does not apply consistently to all employes. When, as here, two inconsistent compensation rules exist, surely the application of one to deny an increment otherwise forthcoming under the other is a personnel action. In the present case, employe was entitled under the regulations in 4 Pa. Code §27.12 to a merit increment.
It is also apparent that this denial was a personnel action which discriminated based upon non-merit factors. The imposition of a new maximum salary was
On argument before this Court, appellant raises for the first time the question of whether the Commonwealth Executive Board is an indispensable party to this appeal. Under Rule 8 of the Pennsylvania Rules of Civil Procedure, which deals with the scope of appellate review from administrative agencies, it might be considered too late to raise this question here since it was not raised at the hearing before the Commission ; nevertheless, we will consider it at this time.
Appellant contends that the failure of the Commission to join the Executive Board in the order granting employe’s increment rendered the order nugatory for lack of a necessary party. Only the Executive Board, appellant argues, can effect changes in the compensation plan, and the appointing authority (here the Department of Transportation) is without power to pay salaries not in accordance with the plan. The remunera
Accordingly, we enter the following
Order
Now, June 29, 1973, the Order of the Civil Service Commission in Appeal No. 1355, granting employe the salary increment for which he became eligible on August 10, 1972, is hereby affirmed. The Department of Transportation and the Secretary of Administration are further ordered to grant employe any additional salary increments for which he has become eligible since the date of appeal to the Civil Service Commission.
Concurrence Opinion
Concurring Opinion by
I concur in the result reached by the majority because the Commonwealth has chosen not to apply the September 10, 1969, resolution of the Executive Board uniformly and because it has apparently been interpreted and applied in such a fashion as to bring within its exception employees who happen to be physicians although these qualifications are not prescribed for the position held.
As disclosed in the majority opinion, the Commonwealth for unspecified reasons chose to settle litigation or not seek judicial review of Civil Service Commission action excluding five employees from the resolution’s coverage but now seeks to enforce the resolution as to the appellee here. This is palpably unfair and discriminatory. The Commonwealth cannot be permitted to grant exception to the Executive Board resolution on
I do not agree with the majority, however, that the general subject matter of the resolution itself constitutes “personnel action” within the meaning of Section 905.1 of the Civil Service Act of August 5, 1941, P. L. 752, as amended, 71 P.S. §741.905a. This Section proscribes discrimination against Commonwealth employees in the classified service with respect to “. . . recruitment, examination, appointment, training, promotion, retention or any other personnel action ... because of labor union affiliations or because of race, national origin or other non-merit factors.”
In my opinion, the Executive Board, under the power and authority conferred upon it by Section 709 of the Administrative Code of 1929, Act of April 9, 1929, P. L. 177, as amended, 71 P.S. §249, may exercise its power with respect to Commonwealth employees in appropriate cases if done in a nondiscriminatory fashion even though such action may arguably be considered personnel action and based upon factors other than merit. Surely, if it is to perform its functions, it could place a ceiling on all salaries for reasons of economy or other “non-merit” factors as, in my opinion, it could modify salary ranges for the same reason. Whether such action is taken by way of amendment of the compensation plan or by other procedure is not controlling nor persuasive that the action so taken constitutes pro
Dissenting Opinion
Dissenting Opinion by
I respectfully dissent.
I do not conclude that the failure of a state employee to receive a general salary increase due to an Executive Board resolution fixing an applicable maximum annual salary is a “personnel action” within the meaning of Section 905.1 of the Civil Service Act, Act of August 5, 1941, P. L. 752, as amended, 71 P.S. §741.905a. We recognized in Corder v. Civil Service Commission, 2 Pa. Commonwealth Ct. 462, 279 A. 2d 368 (1971), that Section 905.1 was a protection against discriminatory personnel action suffered by an employee and motivated by non-merit factors. Here no discriminatory personnel action occurred as to Philip W. Amos and I would not remove from the Commonwealth the right to determine the maximum compensation to be paid to its employees for their respective services.