92 Pa. Commw. 286 | Pa. Commw. Ct. | 1985
Opinion by
The petitioner, Thomas J. O’Byrne, has appealed from an order of the State Civil Service Commission upholding his furlough from his former position in the classified service of Right-of-Way-Administrator, regular status, with the Pennsylvania Department of Transportation (department).
In January, 1983, the Secretary of Transportation ordered a reorganization of the four central bureaus of the department’s Highway Administration. The primary objective of the reorganization was to decentralize the bureaus and transfer review responsibilities from central office staff to the district offices, thereby eliminating one layer of management and the duplication of work.
Members of two task forces, an Employee Task Force and an Executive Task Force, met with depart
The appointing authority prepared a plan of reorganization, the Office of Administration approved it and the Executive Board ratified the approval. Under the reorganization, the Right-of-Way Division was- consolidated with the Utilities' and Grade Crossing Section. Mr. Walker was chosen Chief of the consolidated division. Mr. Walker was a licensed civil engineer, which Mr. 0’Byrne was not. Mr. O’Byrne’s administrative work as Right-of-Way Administrator Was assigned
Thé ’ Civil - Service Commission, after extensive hearings, decided that the appointing authority properly furloughed Mr. O’Byrne from his position as Right-of-Way Administrator for lack of work.
Mr. 0’Byrne argues that the Commission’s finding that he was furloughed for lack of work was not supported 'by ’substantial evidence.
the mere abolition of a position is not sufficient, in itself, to automatically establish a ‘lack of work’ that justifies an employee’s exposure to being furloughed. Rather, the focus has been upon whether there has in faet been a lack of work created by reorganizational streamlining efforts. See Silverman v. Department of Education, 70 Pa. Commw. Ct. 444, 454, 454 A.2d 185, 190 (1982); Vovakes v. Commonwealth, Department of Transportation, 71 Pa. Commw. Ct. at 7 n. 8, 453 A.2d 1074 n. 8. (Emphasis in original.)
Id. at 210, 484 A.2d at 758-759.
The department’s evidence introduced at the Commission hearing was to the effect that Mr. Walker was chosen to head the consolidated division because he was a licensed civil engineer and that the superiors of both men believed that the consolidated division should be headed by an engineer as the former Utility and Grade Crossing Section had been. There was also evidence that Mr. O ’Byrne’s duties were assigned in part to Mr. Walker and the remainder among other employees. Mr. O’Byrne maintains that this evidence does not support a finding of lack of work and that the opposite was proved by evidence he introduced to
Mr. O’Byrne further contends that the appointing authority’s reorganization and decision to abolish his position were implemented in bad faith and contrary to the requirements of the Act.3 We disagree. There
Mr. O’Byrne also contends that the appointing authority committed an error of judgment in concluding that a professional engineer should administer the newly consolidated division and that the chief of the division should, instead, have been an expert in right-of-way acquisition. This is precisely the kind of decision which is committed to the discretion of the appointing authority and not properly subject to being overturned by the Commission or this court. Department of Public Welfare v. Magrath, 14 Pa. Commonwealth Ct. at 261, 321 A.2d at 405.
Mr. O’Byrne also contends that the Civil Service Commission committed an abuse of discretion in denying his motion made at the first of six evidentiary hearings conducted by the Commission to amend his complaint to include an allegation that his furlough was an act of discrimination under Section 905.1 of the Act, as amended, added by Section 25 of the Act of August 27, 1963, P.L. 1257, 71 P.S. §741.905a, prohibiting personnel actions because of political, religious, union, race, national origin or other non-merit factors. The allowance of amendments is committed
Lastly, Mr. O’Byrne contends that the Commission erred in not holding his dismissal to be invalid because the department presented no evidence . that
Order affirmed.
Order
And Now, this 17th day of October, 1985, the order of the State Civil Service Commission in the above-captioned matter is affirmed.
The. Commission ordered that Mr. O’Byrne be paid for the period. September 21, 1983 until September -28,' 1983, which latter date, it found as the .effective date of his furlough.
Our scope of review is to determine whether constitutional rights have been"'violated, an error of law has been committed or a necessary finding of fact was not supported by substantial evidence: 2 Pa. C.S. §704. Vovakes v. Department of Transportation, 71. Pa, Commonwealth Ct. .3, 453 A.2d 1072 (1982).
Mr. O’Byrne cites as an illustration of the appointing authority’s bad faith the fact that when he applied for the position of Right-of-Way Administrator II, a position in a lower classification than his former position, the appointing authority removed the classification, he says to preclude his application. According to 4 Pa. Code §101.1(d),. an employee, “[u]pon notification of, and until the effective date of furlough, . . . [has] right of return to vacant positions in the appointing authority ... to a class and status in the same or lower levels. . . .” Mr. O’Byme applied for the lower level Right-of-Way Administrator II position on August 1, 1983, Be was not notified of his furlough effective September 28, 1983 until August 8, 1983. The position of Administrator II was eliminated on August 2, 1983. The Commission concluded that Mr. O’Byme had no right to placement as an Administrator II before he was notified- of his furlough and its effective date. As we have observed in the body of our opinion, this matter seems to us to be a different personnel action from the furlough.