Appeal, No. 287 C.D. 1972 | Pa. Commw. Ct. | Jan 12, 1973
Lead Opinion
Opinion by
This is an appeal from an order of the State Civil Service Commission (Commission) removing John E, Wasniewski (appellant) from his position as Liquor Stock Clerk II, probationary status, with the Pennsylvania Liquor Control Board because the appellant had engaged in illegal political activity in violation of Section 904 of the Civil Service Act (the Act), Act of August 5,1941, P. L. 752, as amended, 71 P.S. §741.904.
Our scope of review, under the authority of Section 44 of the Administrative Agency Law, Act of June 4, 1945, P. L. 1388, as amended, 71 P.S. §1710.44, is not de novo but looks only to errors of law or abuse of discretion as the determinative criteria. We must affirm an adjudication of the Commission unless it is determined that such adjudication violated the constitutional rights of the appellant or was not in accord
The essential facts are not in dispute. In June, 1970, appellant became a committeeman for the Democratic Party in the 31st Ward, 23rd Division in Philadelphia. On December 3, 1970, he was appointed to a position as an hourly employee by the Liquor Control Board for employment in Philadelphia. It is clear, however, that he was actively engaged as a committeeman during the primary election of May, 1971. A letter, dated May 27, 1971, from appellant to his supervisor indicates that he remained politically affiliated as of that date.
The appellant contends (1) that by exercising control over both the prosecutory and adjudicative processes of his removal, the Commission did not reasonably assure his right to a fair and unbiased adjudication and thus denied him his constitutional right of due process of law (citing for authority Donnon v. Downingtown Civil Service Commission, 3 Pa. Commw. 366" court="Pa. Commw. Ct." date_filed="1971-10-28" href="https://app.midpage.ai/document/donnon-v-downingtown-civil-service-commission-2317453?utm_source=webapp" opinion_id="2317453">3 Pa. Commonwealth Ct. 366, 283 A. 2d 92 (1971)); and (2) that the decision of the Commission is not supported by competent, material and substantial evidence in that no evidence of the alleged political activity was presented.
As to the first of these, Schlesinger Appeal, 404 Pa. 584" court="Pa." date_filed="1961-07-18" href="https://app.midpage.ai/document/schlesinger-appeal-6258033?utm_source=webapp" opinion_id="6258033">404 Pa. 584, 172 A. 2d 835 (1961), and Gardner v. Repasky, 434 Pa. 126" court="Pa." date_filed="1969-04-23" href="https://app.midpage.ai/document/gardner-v-repasky-1492858?utm_source=webapp" opinion_id="1492858">434 Pa. 126, 252 A. 2d 704 (1969), “simply hold that it is no longer necessary to find actual evidence of bias by an administrative tribunal to sustain a finding that there was a denial of due process of law . . . the question before us is: Absent a showing of actual bias, did the municipality or its agency provide reasonable procedural safeguards to assure the protection of the respondent’s right to a fair and unbiased adjudication?” Donnon v. Downingtown Civil Service Commission, supra, 3 Pa. Commonwealth Ct. at 369, 283 A.2d 92" court="Pa. Commw. Ct." date_filed="1971-10-28" href="https://app.midpage.ai/document/donnon-v-downingtown-civil-service-commission-2317453?utm_source=webapp" opinion_id="2317453">283 A. 2d at 94. (Emphasis in original.)
Such individual prosecution and adjudication as in Donnon did not occur here. “Thus the record indicates that the investigation of Mr. Wasniewski’s political activity was initiated after receipt of a citizen’s complaint. The investigation was conducted by Mr. Balash, Chief of Verification and Personnel Investigation. Mr. Balash, of course, was neither a member of the Civil Service Board, nor was he the prosecutor at the hearing which was held to consider this matter.”
Appellant’s second contention is that the Commission’s adjudication is not supported by substantial evidence because no evidence of the alleged political activity was presented. It is not disputed that he was,
It is evident from subsections (d)(3), (f) and (j) of Section 3 of the Act, 71 P.S. §§741.3(d) (3), 741.3 (f), 741.3(j), that both hourly employees and full-time probationary employees are in the “classified service.” Therefore, from the express language of Section 904 of the Act, 71 P.S. §741.904, which forbids any person in the classified service to “serve as a member of any committee of any political party,” regardless of whether that person is politically active or not, it becomes clear
Appellant regards his committee membership as a mere “technical violation of Section 904.” Many states, however, as well as the Federal Government,
It is unnecessary for us to discuss a further violation of Section 904 which was posited by the Commission for its removal of appellant — that on general election day, November 6, 1971, Mr. Wasniewski spent approximately iy2 hours at or near his polling place at 3625 East Lehigh Avenue in Philadelphia, and that he engaged in various discussions with people within 50 feet of that location.
Order affirmed.
In pertinent part, Section 904 states as follows: “No person in the classifies service shall . . . serve as a member of any committee of any political party . . . nor shall he be within the polling place or within fifty feet thereof, except for the purpose of carrying out official duties and of ordinary travel or residence during the period of time beginning with one hour preceding the opening of the polls for holding such election and ending with the time when the election officers shall have finished counting the votes and have left the polling place for the purpose of depositing the election material in the place provided by law for that purpose. . . .” (Emphasis added.)
The letter reads as follows: “On May 26, 1971, Mr. Sam Kroniek informed me that I would have to write you a statement, telling you that I would give up my political affiliations, in order to obtain Oivil Service Status. This letter is my written statement that I will give up politics if T am given a Oivil Service Appointment as Stock Olerk II.”
The letter reads as follows: “I, John Wasniewski regret to inform you that I am here notifying you that I must resign my duties and affiliations as Committeeman of the 31st Ward and 23rd Division, effective August 20, 1971. Please make all the necessary changes for me.”
The letter reads as follows: “We wish to call to your attention that a employee of Pennsylvania Liquor Control Board (Sub Warehouse 7011, Phila. John Wesniewski repeatedly violates and
Brief for Appellee, p. 10; the Civil Service Commission, by Section 203 of the Act, 71 P.S. §741.203, is mandated to initiate and conduct investigations of suspected political activity among employees in the classified service in Pennsylvania. It is further directed by Section 906, 71 P.S. §741.906, to remove any employee found to be in violation of the Act.
The pertinent sections of the Hatch Act, which was passed in two installments, 53 Stat. 1147 (1939), and 54 Stat. 767 (1940), are found in 5 U.S.C. §§1501-1508, 7321-7327.
See, e.g., the discussion in Ex parte Curtis, 106 U.S. 371" court="SCOTUS" date_filed="1882-12-18" href="https://app.midpage.ai/document/ex-parte-curtis-90682?utm_source=webapp" opinion_id="90682">106 U.S. 371, 1 S. Ct. 381 (1882).
This opinion was reprinted in Duffy v. Cooke, 239 Pa. 427" court="Pa." date_filed="1913-02-24" href="https://app.midpage.ai/document/duffy-v-cooke-6251576?utm_source=webapp" opinion_id="6251576">239 Pa. 427, 434, 86 A. 1076, 1079 (1913).
Concurrence Opinion
Concurring Opinion by
I believe that the majority has reached a conclusion consistent with established precedent but I also believe that it is time for a legislative reconsideration of a
The effect of such a statute is to preclude a great number of people from contributing to public affairs, and, in this specific instance results in the stripping of a man of his livelihood for what could be termed a technical violation of the Act.
Furthermore, this is just the type of situation in which it is most probable that the potential violators are uninformed as to what activities are prohibited. I realize that, in general, ignorance is no defense, but in a situation where first amendment rights and possibly a person’s livelihood are involved, perhaps the legislature should be somewhat more attuned to the needs and the desires of the populace.
In National Association of Letter Carriers v. United States Civil Service Commission, No. 577-71, filed July 31, 1972, a three judge federal panel considered an attack upon the Hatch Act, the federal counterpart to the statute now in question. The majority there concluded that the incorporation clause of that act, 5 U.S.C. §7324(a) (2) was unconstitutionally vague and over-broad. Judge Gksell, speaking for the majority, posed some queries that are relevant here and which should be dealt with in any reconsideration of the prohibition here in question. The issue was just how much activity could be prohibited and the majority stated: “If he [a governmental employee] writes a letter to a newspaper seeking support for a program endorsed by a political party, such as population control, does he intend to influence? How many people can see or hear what he
The act in question in the instant case prohibits a person n the classified service from, inter alia, taking an active part in a political campaign, using his office or position to influence political movements or to influence the political action of any officer or employees in the classified service. Act of August 5, 1941, P. L. 752 as amended, 71 P.S. §741.904.
The questions quoted above pose serious problems as to what constitutes using one’s office or position to influence political movements within the meaning of this Act. This is the area which deserves re-evaluation and I commend it to the legislature in view of the unquestioned importance of freedom of expression.
Dissenting Opinion
Dissenting Opinion by
I respectfully dissent. With the benefit of the majority and concurring opinions, I have read and reread the short record in this case. It is my opinion that because the evidence presented against Mr. Wasniewski, the appellant, is so woefully weak and lacking in substantive evidence, I must conclude that the charges made against him were not supported by substantial evidence, as required by law.
Section 904 of the Civil Service Act, Act of August 5, 1941, P. L. 752, art. IX, Section 904, as amended,
The State Civil Service Commission (Commission) is subject to the Administration Agency Law, Act of June 4, 1945, P. L. 1388, as amended, 71 P.S. §1710.51. That statute provides direction on our scope of review, at 71 P.S. §1710.44, where it is stated: “[T]he court shall affirm the adjudication unless it shall find that the same is in violation of the constitutional rights of the appellant, or is not in accordance with law, . . . or that any finding of fact ... is not supported by substantial evidence.”
The only tangible evidence produced was two letters written by the appellant; and the only prosecuting witness was an investigator for the Commission, who testified on his investigation conducted after the alleged events occurred, and who was not present at or near the polling place in question on November 2, 1971.
Both letters are set forth in two footnotes to the majority opinion. The first clearly discloses the appellant’s understanding that as a temporary hourly em-
Admittedly, the second letter of formal resignation from his political party position was sent approximately forty-two days after the appellant received his promotion, and after, under his understanding, he entered the classified service. However, without some showing of intentional defiance or injury to his employer, such a delay hardly seems an unreasonable delay or sufficient grounds for dismissal. There is not one piece of evidence that the appellant was informed or warned that he must, under threat of dismissal, resign prior to the actual date he sent the second letter.
The investigation into the affairs of the appellant came as a result of a handwritten and unsigned letter to the Commission. The Commission launched an investigation, and sent out an investigator to seek out the facts on appellant’s political activities.
The charge was that appellant had been within fifty feet of a polling place for political purposes on election day. The extremely brief presentation by the Commission (entailing some sixteen questions and answers of the investigator) is completely devoid of any substantial evidence which indicates that appellant was improperly at or near the polling place on November 2, 1971. At best the investigator’s testimony contains inferences, which, if unanswered, might permit a reasonable man to believe a wrongdoing, on a circumstantial evidence basis. In this case, however, the infer
The right to seek and keep employment is a fundamental right of every citizen which should not be denied lightly. To dismiss this employee on the evidence presented in this case is, to me, not only grossly unfair but unsupportable under the law.
I would also question the constitutionality of Section 904, set forth hereinbefore. In doing so, I acknowledge the need for vigilant protection against infringement upon the principle that a public employee is entitled to a right to work free from political pressure so as to permit the most effective public service. However, this must be balanced against the public servant’s other basic and fundamental constitutional rights and freedoms. The question arises whether these fundamental rights and freedoms should be restricted for all because of the possible abuse by the few who would improperly interfere with public servants.
Experience, changing conditions and sometimes the mere passage of time causes a reappraisal of principles which at one time may have appeared to be unassailable. Under new statutes in this Commonwealth, even civil service employees are insulated and protected from prior existing possible political pressure by their recently organized labor unions. Courts, in recent deci
From my point of view, the public employees’ rights to free speech and association should remain inviolate, so long as their actions do not interfere with their public service and their duties to their employer. The firing of a public employee in the classified service because he may have been within fifty feet of a polling place on election day for an hour and a half does such violence to that principle that I must register this dissent.