69 Pa. Commw. 431 | Pa. Commw. Ct. | 1982
OniNioN by
This is the appeal of Sherly J. Togans (Petitioner) from an order of the State Civil Service Commission (Commission) which upheld his suspension and dismissal from employment.
Petitioner was employed by the Commission as a Personnel Analyst II, regular status. On July 5,1979, Petitioner was suspended for one day without pay due
Petitioner then instituted an appeal from the Commission’s removal action which was later consolidated with the suspension appeal. Hearing on these two matters, however, was deferred until the conclusion of the Pennsylvania Human Relations Commission (PHRC) investigation into Petitioner’s complaint, which alleged discriminatory removal from employment.
The Chairman of the Commission instructed Petitioner concerning the proceedings and on the dangers of cross-examination, but expressly stated that Petitioner should use “his own judgment” in deciding whether to cross-examine witnesses.
The Commission by order dated October 15, 1980, sustained Petitioner’s suspension and removal from work finding that no evidence was presented to support Petitioner’s contention that the decision to remove him was based on racial, religious or sexual discrimination or other non-merit factors. The Commis
Initially, we must state that it is well established that this Court will not substitute its judgment for that of the Commission unless the adjudication was not in accordance with the law, a necessary finding of fact was unsupported by substantial evidence or constitutional rights were violated. Laurito v. Department of Transportation, 62 Pa. Commonwealth Ct. 406, 436 A.2d 1236 (1981). Our review has disclosed no errors of law nor have we found a lack of substantial evidence to support the Commission’s findings.
We now must turn our attention to the question of whether or not Petitioner’s constitutional rights were violated. The first constitutional challenge raised by
After a thorough investigation of the record we are satisfied that the hearing below was conducted in
Here, as in Kriss Appeal, 57 Pa. Commonwealth Ct. 326, 426 A.2d 1216 (1981) the Petitioner has failed to show how these functions were impermissibly commingled. In Kriss this Court stated:
It is well settled that an administrative agency may perform both adjudicative and prosecu-torial functions without violating due process as long as the functions are adequately separated. State Dental Council and Examining Board v. Pollock, 457 Pa. 264, 318 A.2d 910 (1974); Bruteyn Appeal, 32 Pa. Commonwealth Ct. 541, 380 A.2d 497 (1977). Moreover, the appellant’s unsupported allegation that he was denied due process is insufficient to overcome the presumption that public bodies have acted in accordance with law.
57 Pa. Commonwealth Ct. at 331, 332, 426 A.2d at 1219. We hold that the adjudicative and prosecutorial roles of the Commission were adequately separated in this case so as not to deprive the Petitioner of Ms due process rights;
Concerning the allegation that Petitioner was denied the right to cross-examine witnesses, we find this
The Petitioner also contends that inappropriate comments were made by the Commissioners and directed to him throughout the hearing. Our review of the record fails to reveal any such comments; moreover remarks of members of the Commission allegedly reflecting bias do not require reversal of a Commission decision when the record demonstrates that the Commission members acted fairly and impartially throughout as was the case here. Silvia v. Department of Transportation, 63 Pa. Commonwealth Ct. 75, 437 A.2d 535 (1981).
Petitioner alleges that the Commission should have informed him of the possibility of a continuance when the affidavits he presented were ruled inadmissible as evidence at the hearing.
Order affirmed.
Order
It is ordered that the order of the Pennsylvania State Civil Service Commission dated October 15, 1980, and numbered 2842, is hereby affirmed.
In those cases wherein a charge of discrimination serves as the basis for an appeal lodged before the Commission and the PHRC, no determination or hearing is undertaken by the Commission until the conclusion of the PHRC investigation.
We are aware that this constitutional challenge was not raised below; however, this issue could not have been effectively raised below, and as such we will briefly deal with it here. See Pa. R.A.P. 1651(3).
As we understand Petitioner’s contention, it is that since the Commission provides an independent review of personnel actions to classified personnel employed by other agencies, bureaus or departments of the Commonwealth, he is entitled to independent review by some unidentified independent agency by virtue of the fact that he is employed by the Commission. While the argument is not illogical, the Commission is the designated arbiter of all appeals of classified employees, including its own and while we will carefully scrutinize the proceedings before the Commission in this and all other cases, all that Petitioner is entitled to under the law is a fair and impartial hearing by the Commission.
Since the affiants were available as witnesses through the use of the Commission's subpoena power, rejection of the affidavits as evidence at the hearing was proper.
The liberal rules of evidence relating to administrative agencies give such agencies broad discretion in admitting or excluding evidence, in any case, so that the exclusion of the subject affidavits does not here constitute a procedural defect.
Scasserra v. Civil Service Commission, 4 Pa. Commonwealth Ct. 283, 287, 287 A.2d 158, 161 (1972), cert. denied, 401 U.S. 968 (1973).