Commonwealth v. Colston , 104 Pa. Commw. 159 ( 1987 )

Opinion by

Judge MacPhail,

The Department of Community Affairs (Department) petitions for our review of an order of the State Civil Service Commission (Commission) which overruled the Departments action in removing James R. Colston, Jr. (Respondent) from his regular status position as Human Resources Development Manager. The Commission found that Respondents removal was without just cause and was discriminatory in nature. See Sections 807 and 905.1 of the Civil Service Act, Act of August 5, 1941, P.L. 752, as amended, 71 P.S. §§741.807, 741.905a.¹

Respondent was dismissed from his position with the Department on March 13, 1985 for allegedly filing false information on his 1984 financial interest statements filed in order to comply with the State Ethics Act² and the Governors Code of Conduct.³ The Commission found as facts that:

4. Appellant owned a number of rental properties in the City of Harrisburg. N.T. p. 57; AA Exs. 7 & 8.

5. Appellant did not list most of his properties on his 1984 Code of Conduct Statement of Financial Interest, and listed none on his 1984 State Ethics Commission statement. N.T. pp.

19, 62, 71; AA Exs. 4 & 5.

Respondent does not dispute that he owned 37 properties during the applicable reporting period for the 1984 financial statements and that the only properties reported appear on the Code of Conduct statement as “1116 thru [sic] 1136 Market St., Hgb. [sic], Pa.”

Despite these facts, the Commission nevertheless concluded that the Department failed to establish just cause for the dismissal. The Commissions conclusion was apparently based on Respondents contention that the instructions regarding disclosure of real estate holdings were unclear. Moreover, the Commission found that the review of Respondents financial statements by the Department was “somewhat extraordinary” and motivated by “something other than a desire to see the goals of the financial disclosure requirement implemented.” The Commission further concluded that given the lack of clarity in the financial statement instructions, Respondent should have been given an opportunity to amend his statements “as was apparently standard practice.” The Department here challenges each of the bases cited by the Commission in support of its decision.⁴

Our scope of review of Commission decisions is to determine whether legal error has been committed, whether necessary fact findings are supported by substantial evidence and whether the civil servants constitutional rights have been violated. Boris v. Department of Environmental Resources, 81 Pa. Commonwealth Ct. 547, 474 A.2d 722 (1984). It is solely within the Commissions province to determine the credibility and weight of the evidence presented. Silverman v. Department of Education, 70 Pa. Commonwealth Ct. 444, 454 A.2d 185 (1982).

Turning first to the issue of whether Respondents failure to fully disclose his real estate interests constituted just cause for his dismissal, we observe that civil service regulations impose the burden on the appointing authority to establish a prima facie case to support its action. The employee may then present his case in rebuttal. 4 Pa. Code §105.15; Hoffman v. Department of Health, 73 Pa. Commonwealth Ct. 284, 458 A.2d 303 (1983). In finding no just cause for removal, the Commission agreed with Respondents position that the instructions regarding disclosure of real estate interests were unclear and justified Respondents limited disclosure. Our review of the record reveals, however, that Respondent only testified regarding the lack of clarity of the instructions on the Ethics Act form. While we believe the Commission could properly accept Respondents argument regarding the lack of clear instructions on that form, we must note that Respondent provided no rebuttal to the Departments evidence that he failed to fully disclose his real estate holdings on the Code of Conduct form. Our own review of those instructions indicate that they do not suffer from the same ambiguity alleged regarding that Ethics Act form. We conclude, therefore, that the Department has presented a prima facie case regarding Respondents failure to fully disclose his real estate holdings on the Code of Conduct form. We have no ruling from the Commission, however, regarding whether or not the failure to disclose constitutes just cause for removal. We, accordingly, will remand for a determination regarding just cause.

Next, we address the Commissions conclusion that Respondents removal was discriminatory in nature. A civil servant claiming discrimination has the burden of providing affirmative evidence to support a claim that his discharge was based on non-merit factors. Lowe v. State Civil Service Commission, 76 Pa. Commonwealth Ct. 267, 463 A.2d 1229 (1983).

A careful review of the Commissions adjudication reveals two bases for its finding of discrimination: (1) that Respondent was improperly singled out for review of his financial interest statements and (2) that Respondent was not permitted to simply amend his forms as the Commission noted “was apparently standard practice” in the Department.

With regard to the Departments review of Respondents financial statements, the Commission noted that the Department primarily reviews such statements for completeness upon filing and that the in-depth review undertaken here was “somewhat extraordinary.” The Department contends that the review process here at issue was initiated when it was reported to two Department Deputy Secretaries that Respondent was receiving telephone calls during office hours from some of his tenants. The Commission found this motivation to be incredible and stated that “given the totality of the circumstances, one could reasonably infer that the review in this case was motivated by something other than a desire to see the goals of the financial disclosure requirement implemented.” (Emphasis added.) Our review of the Commissions ruling, however, is hampered by a lack of fact findings to support the Commissions inference regarding Department motivations. As we have previously stated, “discrimination against a civil service- employee cannot be inferred by the Commission since there must be some affirmative support presented to sustain the allegations of discrimination.” Wagner v. Department of Transportation, 76 Pa. Commonwealth Ct. 78, 83, 463 A.2d 492, 495 (1983). We, accordingly, must remand for the Commission to either reconsider its finding of a discriminatory motivation by the Department or to enter specific fact findings in support thereof.

Regarding the second basis for the Commissions finding of discrimination, to wit, that the Department denied Respondent the opportunity to amend his financial disclosure statements when other employees were permitted to do so, we must agree with the Department that Respondent has foiled to prove that it was, in fact, the Departments standard practice to permit such amendments. Respondents evidence showed that the Department allowed one employee to amend an incorrect address designated on his Ethics Act form and that another employee failed to disclose a loan for over $5,000.00 on his 1983 Ethics Act statement. The loan was properly disclosed, however, on both his 1982 and 1984 statements. There is no evidence that any amendment was made to the 1983 form or as to what, if any, discipline was imposed for the omission. In any event, we do not believe that any standard practice for allowing amendments has been established. We must, therefore, conclude that the Commissions finding of discrimination based on such a standard practice was in error.

We, accordingly, will vacate the Commissions ruling that Respondents removal was discriminatory and remand for further consideration of the issue of discrimination in accord with the foregoing opinion. We also remand for a ruling on the issue of whether Respondents failure to fully disclose his real estate interests on the Code of Conduct form constitutes just cause for his dismissal.

Order

The order of the State Civil Service Commission in the above-captioned matter is hereby vacated and remanded for further proceedings consistent with the foregoing opinion.

Jurisdiction relinquished.

1 Section 905.1 was added by Section 25 of the Act of August 27, 1963, P.L. 1257.

2 Act of October 4, 1978, P.L. 883, 65 P.S. §§401-413. The State Ethics Act is an unofficial, but commonly used, title for this statute.

3 4 Pa. Code §§7.161-7.164.

4 We observe that the Commission also noted in a footnote to its decision that the Department did not give Respondent an adequate opportunity to respond to the charges against him prior to his dismissal. While we have serious reservations regarding the adequacy of the pretermination process afforded Respondent in the instant case, see Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), we decline to rule on the due process issue since the Commission did not base its own decision thereon. We do not intend, however, to limit the Commissions further consideration of this issue, if appropriate, on remand.