83 Pa. Commw. 101 | Pa. Commw. Ct. | 1984
Opinion by
Nicholas Lylo seeks review of an order of the Pennsylvania Civil Service Commission (Commission) dismissing bis appeal from suspension, effective May 14, 1982, and subsequent removal, effective October 25, 1982, from bis position as Forester IV, regular status, by the Pennsylvania Department of Environmental Resources (DER).
On May 14, 1982, Lylo was orally suspended without pay from bis position with the classified service because of criminal charges filed against him. By letter dated May 20, 1982, DER confirmed the oral suspension giving as its reason “that charges of criminal activity involving tbe performance of your duties as a Forester have been filed against you by tbe State Attorney G-eneral. ’ ’ The letter further stated that because Section 803 of the Civil Service Act (Act)
On October 1, 1982, Lylo was arraigned on forty counts of criminal conduct involving his duties as a forester. He was accepted into the Accelerated Rehabilitative Disposition (ARD) program
Lylo appealed the initial suspension and the two removal actions, dated June 25, 1982 and October 25, 1982, respectively, to the Commission. The Commission upheld the suspension and the second removal action of October 25, 1982 after sustaining seven of the eight counts enumerated in DER’s October 25, 1982 termination letter. It concluded, however, that DER’s June 25, 1982 letter did not constitute sufficient notice of removal because it did not state with sufficient specificity the reasons for termination as required by
Lylo appealed the Commission’s order; DEE did not.
We must affirm the order of the Commission unless we find that it violated Lylo’s constitutional rights, was not in accordance with law or that necessary findings of fact were unsupported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C. S. §704.
Lylo first challenges his suspension, effective May 14, 1982, on two grounds: that he was not given notice and an opportunity to be heard and was therefore deprived of his constitutional right to due process and that good cause did not exist for the suspension.
Section 803 of the Act, 71 P.S. §741.803 provides that an appointing authority “may for good cause suspend without pay for disciplinary purposes an employe holding a position in the classified service. . . . What shall constitute good cause for suspension may
(a) Good cause for suspension shall be a just cause, such as:
(1) insubordination;
(2) habitual lateness in reporting for work;
(3) miscondnct amounting to violation of law, rules or lawful and reasonable departmental orders;
(4) intoxication while on duty;
(5) scandalous or disgraceful conduct . while on or off duty which may bring the service of the Commonwealth into disrepute; or
(6) similar substantial reasons.
Additionally, the Governor’s Code of Conduct for Appointed Officials and State Employes provides relevantly at 4 Pa. Code §7.173:
As soon as practicable after an employe has been formally charged with criminal conduct related to his employment with the Commontvealfh or which constitutes a felony, such employe shall be suspended without pay. (Emphasis added.)
The Commission found that Lylo was suspended for good cause within the meaning of the Act because “some of the charges lodged against [Lylo] bore directly upon his performance of his employment duties. ...” We agree, in that he was suspended for activities which at the least constitute “misconduct amounting to violation of law, rules or lawful and reasonable departmental orders” and “scandalous or disgraceful conduct while on or off duty which may bring the service of the Commonwealth into disrepute.” 4 Pa. Code §101.21(a) (3) and (5).
Lylo’s second challenge to his suspension, that it was imposed without a prior hearing and therefore denied him his due process rights, is contrary to the law of this Commonwealth and, as such, is devoid of merit. Gorby v. Pennsylvania Department of Public Welfare, 57 Pa. Commonwealth Ct. 312, 426 A.2d 223 (1981); Williams v. Pennsylvania Civil Service Commission, 9 Pa. Commonwealth Ct. 437, 306 A.2d 419 (1973). The various agencies of the state government do not have to hold a hearing before suspending an employee. Due process is served when the employee is given notice of the charges against him and a full opportunity to appeal the agency action to the Commission,
Pursuant to Section 803 of the Act, the Commission properly concluded that Lylo’s suspension expired after thirty days; that DEB’s June 25, 1982 removal action was ineffective; and that Lylo was entitled as
Order affirmed.
Order
And Now, this 6th day of June, 1984, the order of the Pennsylvania State Civil Service Commission in the above-captioned matter is affirmed.
Act of August 5, 1941, P.L. 752, as amended, 71 P.S. §741.803.
See Pa. R. Crim. P. 175-185.
Section 950 of the Act provides that “[e]very person in the classified service shall be furnished with written notice of any personnel action taken with respect to him pursuant to the provisions of this act. . . . The notice shall in the ease of the permanent separation, suspension for cause, or demotion of a regular employe set forth the reason or reasons for the action.”
4 Pa. Code §105.3(a) provides that “[t]he notice of removal, resignation by abandonment, involuntary retirement, involuntary demotion, or suspension which is issued to regular employees shall include a dear statement of the reasons therefor, sufficient to apprise the employe of the grounds upon which the charges are based.”