Com. of PA, PA Game Comm. v. SCSC (Wheeland) ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania, :
Pennsylvania Game Commission, :
Petitioner :
:
v. : No. 608 C.D. 2018
: Submitted: May 8, 2019
State Civil Service Commission :
(Wheeland), :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION
BY PRESIDENT JUDGE LEAVITT FILED: October 18, 2019
The Pennsylvania Game Commission petitions for this Court’s review
of an adjudication of the State Civil Service Commission ordering the reinstatement
of Timothy A. Wheeland to his position as Wildlife Maintenance Propagator. The
Game Commission furloughed Wheeland when it closed the pheasant game farm
where Wheeland worked as a cost-savings and efficiency measure after receiving a
substantial budget cut. The Game Commission contends that the Civil Service
Commission erred in holding that the Game Commission’s evidence did not make a
prima facie case that Wheeland’s furlough was necessitated by lack of funds and in
refusing even to address the Game Commission’s evidence that his furlough was
also necessitated by a lack of work.
Background
On December 12, 2016, the Game Commission notified Wheeland that
he would be furloughed as of January 27, 2017, due to a lack of funds. Pursuant to
Section 951(a) of the former Civil Service Act,1 Wheeland appealed to the Civil
Service Commission, which held a hearing on May 2, 2017.
The Game Commission called Robert Boyd, the Wildlife Services
Division Chief for the Game Commission’s Bureau of Wildlife Management, to
testify about why the Game Commission closed the North Central Game Farm and
furloughed Wheeland and five other pheasant propagators who worked there. The
Bureau, inter alia, operates a pheasant propagation program that hatches pheasant
chicks and raises them at game farms located in different parts of the state. As
Division Chief, Boyd is responsible for the pheasant propagation program’s finances
and budget. Notes of Testimony, 5/2/2017, at 14-15 (N.T. __); Reproduced Record
at 65a-66a (R.R. __).
Boyd identified two Game Commission memoranda that were authored
by the agency’s Executive Director, Robert Hough. Boyd was the recipient of one
memorandum and copied on the other. In the first memorandum, Appointing
Authority Exhibit 1, Hough wrote to staff on April 7, 2015, that the Game
Commission had been instructed by the Governor’s Office to reduce “this year’s
budget by an additional $5.2 million; this is on top of the $14 million we were
already required to cut from our budget this winter.” Appointing Authority Exhibit
1
Act of August 5, 1941, P.L. 752, as amended, added by Section 27 of the Act of August 27, 1963,
P.L. 1257 (provides for appeals and hearings), formerly 71 P.S. §741.951(a). The Civil Service
Act was repealed by the Act of June 28, 2018, P.L. 460, effective March 28, 2019. The subject
matter of Section 951 of the former Civil Service Act is now found at 71 Pa. C.S. §§2202 and
3003, as enacted by the Act of June 28, 2018, P.L. 460.
2
1 (AA-1); R.R. 18a. The memorandum cited a decline in the Game Commission’s
revenue from natural gas leases of state game land. Hough’s second memorandum,
Appointing Authority Exhibit 2, was addressed to the Governor’s Secretary of
Administration and notified the Secretary that the Game Commission intended to
furlough 13 pheasant propagators, effective January 27, 2017.2 Boyd was one of
four senior Game Commission staff copied on this communication to the Secretary
of Administration.
Boyd testified that the Game Commission was instructed to reduce
expenses because its funding had been reduced by 10 percent for fiscal year 2015-
2016 and 25 percent for the following year. Boyd testified that his Bureau
implemented these instructions by not filling vacant propagator positions and
deferring certain capital improvements. Most significant was the Bureau’s decision
to end the pheasant hatchery operations and move to a “chick purchase program.”
N.T. 19; R.R. 70a. Boyd explained that in 2015 the Game Commission spent $4.7
million on pheasant propagation; in 2017, this was reduced to $3 million. Boyd
explained that personnel constitutes the largest single expense item in the Bureau’s
budget for the pheasant propagation program.
2
Hough’s memorandum of November 15, 2016, states, in relevant part, as follows:
It has been determined that it will be necessary to furlough 13 Wildlife Maintenance
Propagators from the Western and [North Central] Game Farms. These positions
are covered by a collective bargaining unit [] and these are Civil Service covered
positions. The anticipated date of the furlough is January 27, 2017. Each game
farm is its own seniority unit and all propagators in each unit will be furloughed.
The Western Game Farm is furlough unit 008 with 7 propagators and the North
Central Game Farm is furlough unit 010 with 6 propagators.
Appointing Authority Exhibit 2 (AA-2); R.R. 21a.
3
Boyd explained how the decision to furlough Wheeland was made. He
stated that because “we didn’t get our license fee increase” from the legislature, it
was decided to close the game farms to save money. N.T. 21; R.R. 72a. Initially,
all four game farms were slated for closure. However, Boyd explained that “it was
decided to go ahead and keep the program alive because it does add value[] to the
Agency and to our Sportsmen Unlimited.” Id. Accordingly, the Game Commission
decided to keep two farms open, one in each part of the state. He explained how the
Bureau chose the farms to be closed:
Q. And how did you pick which farms would be closed?
A. Well, it was a very difficult decision, but we divided the
state into two halves, the eastern half and the western half. In the
west, it---if you’re looking at farms that would be in the central
part of that area[,] the Southwest Game Farm was sort of an easy
winner over the Western Game Farm.
In the eastern part of the state, the Loyalsock and [North Central]
Game Farms are both very close together. So really the deciding
factor there was the fact that Loyalsock Game Farm had a
breeder flock. [It] no longer had the breeder flock, so [it] had
open pens that we could use for increased holding capacity for
birds released in the fall for sportsmen.
The [North Central] Game Farm did not have a breeder flock
previously and did not have those empty pens available.
Q. Mr. Boyd, is it necessary to have additional Wildlife
Maintenance Propagators in order to raise the chicks at the
remaining farms?
A. No. We’re --- we’re planning to make do with the existing
staff at the Southwest and Loyalsock Game Farms.
N.T. 21-23; R.R. 72a-74a.
4
Wheeland, who was pro se, then questioned Boyd. Wheeland, who
lives close to the North Central Game Farm where he had worked prior to the farm’s
closure, informed Boyd that “on a pretty regular basis” he saw employees
maintaining the grounds. N.T. 24; R.R. 75a. When asked about these employees,
Boyd responded that staff from the two remaining game farms worked at the North
Central Game Farm as needed, leaving “no unmet needs in terms of manpower.”
N.T. 25; R.R. 76a. Wheeland then stated that when the Game Commission first
considered buying chicks, he and other propagators were told they would not be
furloughed. In response, Boyd explained as follows:
By buying chicks, we’re saving money and improving our
efficiency. But there were no plans to furlough anybody. If we
were able to go through with four farms and buy chicks, we were
going to go with full force. It’s only not getting the license fee
increase that caused this level of crisis to escalate to the point
we had to close two farms because of the lack of revenue to the
[Game Commission].
N.T. 26; R.R. 77a (emphasis added). In short, it was the “lack of revenue” from
anticipated license fee increases that required the closure of two game farms.
Wheeland questioned Boyd about the Game Commission’s decision to
hire 35 new Wildlife Conservation Officer Cadets contemporaneously with the
furloughs. Wheeland presented a job description for a “Wildlife Conservation
Officer Cadet.” Appellant Exhibit 1; R.R. 48a. He also presented an email he
received from the district office of Pennsylvania State Representative Garth Everett.
Appellant Exhibit 2; R.R. 50a. Representative Everett’s email to Wheeland
estimated that hiring 35 new Wildlife Conservation Officer Cadets would cost
approximately $2 million.
5
Wheeland asked Boyd how the Game Commission could afford to hire
the cadets while also finding it necessary to furlough propagators. Boyd replied,
“[j]ust understand that I’m in charge of the Pheasant Propagation Program. I don’t
work at the higher level where these decisions are being made about what gets
cut….” N.T. 31; R.R. 82a. Wheeland then asked, “I’m sure you’re aware of all this,
though. Correct?” Id. Boyd responded in the affirmative. Wheeland asked Boyd
why, in defending the pheasant propagation program against furloughs, Boyd did
not object to the cadet hirings. Boyd responded, “Maybe I did.” N.T. 32; R.R. 83a.
Wheeland was sworn and then presented his case. Wheeland opined
that the propagators should have been employed until the end of the fiscal year
“seeing as how the budget was already in place. There was money there to pay to
[the propagators]. There was still work to be done.” N.T. 42; R.R. 93a. Wheeland
testified that, during the winter, propagators do maintenance on machinery at the
farms. He stated that he and the other propagators could have done maintenance at
the North Central Game Farm instead of “pushing it to one of the other two farms
and you know, making them maintain it.” N.T. 45; R.R. 96a.
The Game Commission objected to the admission of Wheeland’s
exhibits, Appellant Exhibits 1 and 2, as irrelevant. The Commissioner conducting
the hearing stated, “I’m going to go ahead and admit [them] for the record…. [W]e
will give those the weight they deserve during our adjudication of this matter. But I
don’t see any reason to keep them out of the record.” N.T. 36; R.R. 87a. He also
stated that “[o]ne thing that is not going to come out of our decision in this matter is
we’re not going to second-guess the [Game] Commission and the Executive
Director’s decision as to priority functions.” Id.
6
The Game Commission moved to admit both Appointing Authority
Exhibits 1 and 2, and Wheeland did not object. The Commissioner stated:
So, AA-1, the two Appointing Authority exhibits, AA-1 and AA-
2 will be admitted into the record without objection.
And likewise, I do think that they provide a little more detail of
the budget situation that the [Game Commission] was facing at
the time of the furlough. So I think they’re going to be given just
not equal weight, probably a little more weight.
N.T. 38; R.R. 89a.
Adjudication
The Civil Service Commission sustained Wheeland’s appeal. The Civil
Service Commission found that the Game Commission’s admitted exhibits “AA-1
and AA-2” were hearsay and not entitled to probative value. It further found that
Boyd’s testimony did not corroborate the Game Commission’s admitted exhibits,
reasoning that Boyd did not have personal knowledge of the relationship between
the Game Commission’s funding and Wheeland’s furlough.
In its adjudication, the Civil Service Commission made the following
conclusion of law:
The appointing authority has failed to present evidence
establishing a lack of funds sufficient to justify furlough under
Section 802 of the Civil Service Act, as amended.
Civil Service Commission Adjudication at 17. Based on this conclusion, it ordered
the Game Commission to expunge the furlough from Wheeland’s record, return
Wheeland to regular employment as a Wildlife Maintenance Propagator within 30
days and reimburse Wheeland for all wages and emoluments due since January 27,
2017, less wages and benefits received.
7
Appeal
On May 1, 2018, the Game Commission petitioned for this Court’s
review,3 and it makes three arguments on appeal. First, it argues that the Civil
Service Commission erred in holding that the Game Commission did not present a
prima facie case that lack of funds caused Wheeland’s furlough. Second, it argues
that the Civil Service Commission erred in refusing to address the Game
Commission’s evidence that lack of work caused Wheeland’s furlough. Third, it
argues that in reaching its conclusion, the Civil Service Commission improperly
considered the Game Commission’s decision to hire additional law enforcement
personnel.4
I.
We begin with a review of the law relevant to the furlough of employees
protected by the Civil Service Act. Our Supreme Court has explained as follows:
A “furlough” is defined by Section 3(s) of the Civil Service Act
. . . as a “termination of employment because of lack of funds or
of work.” When there has been called into question the validity
of a furlough, the appointing authority has the burden of going
forward with proof to establish a prima facie case justifying the
furlough, viz, that the furlough resulted from a lack of funds or a
lack of work. 4 Pa. Code §105.15.[5]
3
This Court’s review of a Civil Service Commission adjudication is limited to determining
whether necessary findings of fact are supported by substantial evidence, whether an error of law
has been committed or whether constitutional rights have been violated. Pennsylvania Game
Commission v. State Civil Service Commission (Toth), 747 A.2d 887, 891 (Pa. 2000).
4
On August 23, 2018, because Wheeland did not file a brief in accordance with the briefing
schedule, this Court entered an order extending the brief’s deadline to September 5, 2018. The
order further stated that failure to file a brief in accordance with the extended deadline would bar
his participation in this appeal. Wheeland responded by email that he would not file a brief.
5
The Civil Service Commission’s regulation states as follows:
8
Department of State v. Stecher, 484 A.2d 755, 757 (Pa. 1984). A lack of funds
“exists when insufficient revenue is available to meet all financial demands unless
modifications are made in the system.” Forbes v. Department of Transportation,
434 A.2d 892, 894 n.4 (Pa. Cmwlth. 1981). To establish a prima facie case on lack
of funds, the appointing authority must present “specific evidence of the need for
financial cuts which would justify the furlough.” Beaver County v. Funk, 492 A.2d
118, 121 (Pa. Cmwlth. 1985).
To show a lack of funds, the Game Commission offered several pieces
of evidence. It offered two contemporaneous memoranda authored by the Game
Commission’s Executive Director. One memorandum was sent to Game
Commission staff, and the other was sent to the Governor’s Office. The
Commissioner conducting the hearing observed that the two memoranda “provide a
little more detail on the budget situation that the Game Commission was facing at
the time of the furlough” and would be given “a little more weight.” N.T. 38; R.R.
89a. In its adjudication, however, the Civil Service Commission did a volte face on
these admitted memoranda, concluding that they were not entitled to any weight
because they were hearsay.
The Game Commission also offered the testimony of Boyd. The Civil
Service Commission did not find Boyd’s testimony incompetent or incredible;
rather, it concluded that Boyd had not been sufficiently specific.
(a) The appointing authority shall go forward to establish the charge or charges on
which the personnel action was based. If, at the conclusion of its presentation, the
appointing authority has, in the opinion of the Commission, established a prima
facie case, the employee shall then be afforded the opportunity of presenting his
case.
4 Pa. Code §105.15(a).
9
In so holding, the Civil Service Commission relied upon Beaver
County, 492 A.2d 118, where the county furloughed an employee for lack of funds.
The county’s witness testified that the county had made a policy decision to cut
personnel costs, but his testimony did not connect this policy decision to a lack of
funds. At best, the county’s witness made “general statements about the County’s
1982 deficit.” Id. at 121. It did not present “specific evidence of the need for
financial cuts which would justify the furlough.” Id.
Beaver County is distinguishable because the Game Commission
presented “specific evidence of the need for financial cuts.” Id. Boyd testified that
the legislature’s decision not to adopt a pheasant hunting license (and the attendant
license fee) or to raise the existing fees for hunting licenses created a “crisis” that
required the Game Commission “to close two farms.” N.T. 26; R.R. 77a. Boyd
explained that this fee revenue was needed because of declining revenue from
natural gas leases. Further, Boyd identified the actual savings realized by the
reduction in the pheasant propagation program, for which he had budget
responsibility. The 2015-2016 budgeted expense of $4.7 million for the pheasant
propagation program was reduced to $3 million in 2017. In sum, Boyd provided
detail on loss of funding that had been absent from the county’s testimony in Beaver
County.
In addition, Hough’s April 2015 memorandum to Game Commission
staff projected a $35 million deficit by 2019 if reductions in expenditures were not
made. Exhibit AA-1; R.R. 18a. Thus, the Game Commission’s evidence showed
insufficient revenue “to meet all financial demands unless modifications are made
in the system.” Forbes, 434 A.2d at 894 n.4.
10
The Civil Service Commission’s decision to reject the Game
Commission’s evidentiary case on lack of funds cannot be reconciled with this
Court’s holding in Forbes, 434 A.2d 892. In Forbes, this Court considered the
furlough of an employee of the Department of Transportation for lack of funds. To
support its furlough, the Department presented a memorandum authored by the
Secretary of Transportation, which the employee challenged as insufficiently
specific. This Court rejected this argument, citing the testimony of the Deputy
Secretary of Highway Administration about the memorandum:
The witness indicated that, upon learning that the Legislature had
not provided as much revenue as [the Department] needed to
maintain its funding level, the Secretary sent a memorandum to
the appropriate staff persons alerting them to which programs
had been cancelled, or curtailed, and directing them to make
modifications in their personnel requirements to reflect the
budget reorganization.
Id. at 894 (internal footnote omitted) (emphasis added). This Court concluded that
the Deputy Secretary’s testimony together with a copy of the Secretary’s internal
memorandum describing the Department’s fiscal challenges constituted substantial
evidence that a lack of funds caused the employee’s furlough.
Likewise, here, the Game Commission presented a memorandum of its
agency head, Robert Hough, about the Game Commission’s revenue reductions and
projected deficit, as well as the testimony of “an appropriate staff person,” i.e., Boyd.
Id. Boyd received Hough’s memorandum “alerting” Game Commission staff of the
curtailed budget and “directing them to make modifications in their personnel
requirements.” Id. Boyd’s knowledge about the funding cuts from the Game
Commission was even acknowledged at the hearing by Wheeland, who stated, while
11
referring to the pheasant propagation program cuts, “I’m sure you’re aware of all
this, though.” N.T. 31; R.R. 82a. Wheeland acknowledged Boyd’s presence at the
Game Commission meetings where the furlough decisions were made, even
chastising Boyd for not doing a better job of defending the pheasant propagation
program.
After admitting Executive Director Hough’s memoranda, one internal
to the Game Commission and the other a communication to the Governor’s Office,
the Civil Service Commission refused to consider them for the stated reason that
they constituted hearsay. This was error. Assuming, arguendo, that the two
memoranda were hearsay, they were entitled to be given probative value under
Walker v. Unemployment Compensation Board of Review, 367 A.2d 366 (Pa.
Cmwlth. 1976).
The so-called Walker rule provides that a fact-finder may give hearsay
evidence admitted without objection its natural probative effect so long as it is
corroborated by competent evidence of record. Id. at 370. The Game Commission’s
file memoranda were admitted into the record without objection and entitled to
probative effect because they were corroborated by Boyd, who received both
memoranda.
Boyd demonstrated his personal knowledge of the Game Commission’s
funding shortage. The problem began with a decline in the agency’s natural gas
revenue. In response, Boyd testified that his Bureau cut spending by deferring
capital improvements and not filling vacancies. Boyd explained, however, that the
Game Commission needed a pheasant hunting license or increased hunting license
fees to sustain operations. When that did not occur, a “crisis” developed for the
12
pheasant propagation program, for which personnel was the largest single expense
item. This required the closure of the North Central Game Farm where Wheeland
worked. Boyd testified specifically about his direct involvement in the decision to
close two game farms and furlough Wheeland and others. 6 Boyd’s personal
knowledge of the Game Commission’s revenue challenges, i.e., “loss of funds,” was
demonstrated throughout his testimony and was acknowledged even by Wheeland.
Boyd’s testimony constituted competent evidence that corroborated
both memoranda. This allowed the Civil Service Commission to make findings of
fact on the basis of both of Hough’s memoranda. Even so, the Civil Service
Commission erred in making the assumption that these memoranda constituted
inadmissible hearsay. The word “hearsay” was not spoken at the hearing, either
during testimony or in closing argument. The Commissioner conducting the hearing
informed the parties that the Game Commission memoranda were admitted without
qualification and that they would be given “more weight.” N.T. 38; R.R. 89a.
Administrative hearings are not subject to the finer points of the rules
of evidence that govern judicial hearings. In re S.H., 96 A.3d 448, 461 (Pa. Cmwlth.
2014) (“The rules of evidence are relaxed in administrative proceedings.”).
Nevertheless, they are subject to due process requirements. School District of
Philadelphia v. Pennsylvania Milk Marketing Board, 683 A.2d 972, 978 (Pa.
Cmwlth. 1996). Under Lyness v. State Board of Medicine, 605 A.2d 1204 (Pa.
1992), an administrative agency must separate its adjudicatory function from its
6
In its adjudication, the Civil Service Commission stated that Boyd did not establish his role in
these decisions. Civil Service Commission Adjudication at 14. This is directly contradicted by
Boyd’s testimony as noted above. Indeed, Boyd’s participation was acknowledged by Wheeland.
N.T. 31, R.R. 82a.
13
prosecutorial function. Here, the Civil Service Commission took on the role of
prosecutor by sua sponte raising, and deciding, that the Game Commission’s
memoranda constituted inadmissible hearsay that was not corroborated by Boyd’s
testimony. This was Wheeland’s job. The Civil Service Commission, at a
minimum, should have requested briefs on this hearsay question before doing a volte
face in the adjudication on Hough’s memoranda that had been admitted with the
express assurance that they would be given probative weight.
Moreover, the Civil Service Commission erred in assuming that the
memoranda constituted hearsay. The Commonwealth of Pennsylvania conducts
business through the exchange of memoranda, as does every public and private
organization. Had the Game Commission been aware of the Civil Service
Commission’s concern about the admissibility of two memoranda from Boyd’s files,
it could have responded, inter alia, by showing that the memoranda met the business
records or public records exception to the hearsay rule. See PA. R.E. 803(6), 803(8).7
7
Rule 803(6) and 803(8) of the Pennsylvania Rules of Evidence establish the business records and
public records exceptions to the hearsay rule, stating:
The following are not excluded by the rule against hearsay, regardless of whether
the declarant is available as a witness:
(6) Records of a Regularly Conducted Activity. A record (which includes
a memorandum, report, or data compilation in any form) of an act, event or
condition if:
(A) the record was made at or near the time by--or from information
transmitted by--someone with knowledge;
(B) the record was kept in the course of a regularly conducted
activity of a “business”, which term includes business, institution,
association, profession, occupation, and calling of every kind,
whether or not conducted for profit;
(C) making the record was a regular practice of that activity;
14
(D) all these conditions are shown by the testimony of the custodian
or another qualified witness, or by a certification that complies with
Rule 902(11) or (12) or with a statute permitting certification; and
(E) the opponent does not show that the source of information or
other circumstances indicate a lack of trustworthiness.
***
(8) Public Records. A record of a public office if:
(A) the record describes the facts of the action taken or matter
observed;
(B) the recording of this action or matter observed was an official
public duty; and
(C) the opponent does not show that the source of the information
or other circumstances indicate a lack of trustworthiness.
PA. R.E. 803(6), (8).
The business records exception does not require the presence of the document’s actual
preparer, only the testimony of a qualifying witness. In re Indyk’s Estate, 413 A.2d 371, 373-74
(Pa. 1979). Testimony on the preparation and maintenance of the records is sufficient to justify the
presumption of trustworthiness for the business records exception, and provides a sufficient basis
to offset the hearsay character of the evidence. R.A. Freudig Associates v. Insurance Department,
532 A.2d 509, 512 (Pa. Cmwlth. 1987) (citing Indyk’s Estate, 413 A.2d 371). In Fauceglia v.
Harry, 185 A.2d 598, 600 (Pa. 1962), the Supreme Court explained that “as long as someone in
the organization has personally observed the event recorded, the evidence should be admitted.”
Likewise, for a document to be admissible under the public records exception, the
testimony must show that the document was prepared pursuant to an official duty. Commonwealth
v. Slider, 323 A.2d 376, 377 (Pa. Super. 1974). The official duty can arise from the oral or casual
directions of a superior or from functions inherent in the office, rather than arising from an express
statute or regulation. Commonwealth v. Sabb, 409 A.2d 437, 442 (Pa. Super. 1979). Public records
enjoy a presumption of trustworthiness, requiring the opposing party to establish a lack of
trustworthiness. D’Alessandro v. Pennsylvania State Police, 937 A.2d 404, 414 (Pa. 2007). Rule
803(8) does not impose a personal knowledge requirement as does Rule 803(6). In any case,
personal knowledge may be inferred where the reports were prepared in the ordinary course of the
agency’s duty. Fauceglia, 185 A.2d at 601.
Here, Hough’s two memoranda came from Boyd’s files, and he “personally observed the
event recorded.” Id. at 600. Boyd participated in the decision to close the North Central Game
Farm where Wheeland worked. The Game Commission argues that Hough’s memoranda are
business records and public records that meet the requirements of Pennsylvania Rules of Evidence
803(6) and (8). The Game Commission makes a strong case, but we need not address this issue
because it was not the basis of the Civil Service Commission’s adjudication.
15
Business records and public records, duly admitted, are entitled to be given probative
weight.
The Civil Service Commission erred. There was no basis in the record
for its assumption that Executive Director Hough’s memoranda constituted
inadmissible hearsay. However, even if they had constituted unobjected-to hearsay,
they were fully corroborated by Boyd, the Game Commission’s Wildlife Services
Division Chief. Boyd testified, without contradiction, from his own knowledge
about the cause of the Game Commission’s lack of funds: a decline in natural gas
revenue followed by the General Assembly’s refusal to approve a pheasant hunting
license or an increase in hunting license fees. The intra-agency and inter-agency
memoranda admitted into evidence also demonstrated that lack of funds required the
Game Commission’s Bureau of Wildlife Management to reduce costs. It did so.
The pheasant propagation program was not eliminated but drastically reduced,
which resulted in a savings of $1.7 million in 2017.
II.
The Game Commission next argues that the Civil Service Commission
erred by refusing to address the alternative grounds for Wheeland’s furlough, i.e.,
lack of work.8 We agree.
The Civil Service Commission’s regulation states that “[f]urloughs
shall occur only because of lack of funds or lack of work.” 4 Pa. Code §101.1(a)
8
The notice sent to Wheeland stated that he was furloughed for a lack of funds; however, a
furlough notice need not state the reason for the furlough. 4 Pa. Code §§105.2, 105.3; see
McAndrew v. State Civil Service Commission (Department of Community and Economic
Development), 736 A.2d 26, 29-30 (Pa. Cmwlth. 1999) (“[B]ecause there can only be two reasons
for a furlough, an employee is on notice that he or she is being furloughed due to lack of funds or
work.”).
16
(emphasis added). To establish a lack of work, the appointing authority must
establish that: (1) the employee’s position was eliminated; (2) reorganizational
streamlining occurred; and (3) management in good faith believed that work could
be accomplished more efficiently in the absence of the eliminated position. Stecher,
484 A.2d at 759. A furlough based upon a lack of work is proper when “the amount
of work the employee is performing does not warrant his retention in view of the
fact that the employee’s work can more efficiently, from a cost or operational
standpoint, be performed through reassignment to others….” Id. at 758. See also
Haskins v. Department of Environmental Resources, 636 A.2d 1228, 1229 (Pa.
Cmwlth. 1994) (lack of work occurs when an agency contracts out services
previously performed by the furloughed employee to enhance efficiency or secure
cost savings).9
In Department of Public Welfare v. Magrath, 321 A.2d 403 (Pa.
Cmwlth. 1974), the director of a state hospital determined that non-staff surgeons
could perform surgeries on a fee-for-service basis, thereby saving the hospital money
and improving efficiency. Accordingly, the director furloughed a staff surgeon who
had performed the required surgeries. This Court held that because the staff
surgeon’s work was transferred to a non-staff surgeon, the appointing authority
demonstrated a lack of work.
9
Notably, Section 802(a) of the former Civil Service Act governed the manner by which furloughs
are implemented, but it did not limit the reasons that may make “a reduction in force [ ] necessary.”
Formerly 71 P.S. §741.802(a), repealed by the Act of June 28, 2018, P.L. 460, effective March 28,
2019. The statute places no burden upon the appointing authority to prove necessity. The
adjudication of the Civil Service Commission held that the Game Commission violated Section
802 of the Civil Service Act, without specifying the subsection. Civil Service Commission
Adjudication at 17.
17
In Silverman v. Department of Education, 454 A.2d 185 (Pa. Cmwlth.
1982), this Court cautioned that lack of work is not demonstrated simply by
eliminating a position. Where the work in the eliminated position has been
reassigned from the furloughed employee to another employee, this suggests that
there is not a lack of work. Stated otherwise, the appointing authority cannot use
subterfuge to avoid the rules in the Civil Service Act by furloughing an employee
whose work has been shifted to another employee. This Court elaborated upon
Silverman in O’Byrne v. Department of Transportation, 498 A.2d 1385 (Pa. Cmwlth.
1985). We explained that even where the work of the eliminated position is
transferred to other employees, the appointing authority can demonstrate a lack of
work where the transfer of work has been done to “streamline internal procedures
and to promote efficiency.” Id. at 1388.
Wheeland worked as a propagator at the North Central Game Farm. In
his appeal he sought to “maintain employment with the Commonwealth.” R.R. 6a.
His appeal described his furlough as “unjustified” but did not state why. Id.
Wheeland objected to the closing of the game farm where he worked for the stated
reason that the Game Commission contemporaneously hired new wildlife
conservation officers. He also stated, “I feel that we should have been --- kept [at]
the farm until the end of the --- until the end of the fiscal year.” N.T. 42; R.R. 93a.
Wheeland did not rebut any of the Game Commission’s evidence about the decision
to close the North Central farm after it decided to purchase pheasant chicks in lieu
of hatching them from eggs.
As Boyd fully explained, the Bureau of Wildlife Management has
stopped breeding pheasants and, instead, is buying day-old chicks from a private
18
vendor. The Game Commission closed the North Central and Western Game Farms
because they lacked the pen capacity to handle the purchased chicks. The Game
Commission did not transfer Wheeland’s work as a propagator to other employees.
Consistent with Magrath and Silverman, the Game Commission
offered prima facie evidence that Wheeland’s furlough was necessitated by lack of
work. The Game Commission eliminated Wheeland’s position, not as a subterfuge
to avoid the furlough procedures of the Civil Service Act but, rather, to streamline
its pheasant breeding operations to reduce expenses and improve efficiency. The
Civil Service Commission erred in refusing even to address the Game Commission’s
evidence on lack of work.
III.
Finally, we address the Game Commission’s argument that the Civil
Service Commission erred and abused its discretion by considering irrelevant
evidence, i.e., that the Game Commission was hiring personnel in another division
while it furloughed Wheeland. In its adjudication, the Civil Service Commission
made reference to the Game Commission’s decision to hire 35 Wildlife
Conservation Officer Cadets one week after Wheeland’s furlough. Civil Service
Commission Adjudication at 12.10 However, the Civil Service Commission did not
10
In this regard, the Game Commission relied upon Wheeland’s exhibits, to which the Game
Commission objected. The Commissioner conducting the hearing acknowledged that the decision
on what program to curtail and what program to grow belongs exclusively to the appointing
authority, stating that “we’re not going to second-guess … the Executive Director’s decision as to
priority functions.” N.T. 36; R.R. 87a. It may well be that the game wardens generate revenue
through enforcement initiatives that substantially offsets the expense of their salaries.
19
base its adjudication on the fact of these new hires. The Civil Service Commission’s
discussion was, at most, harmless and irrelevant.11
Conclusion
For all of the foregoing reasons, we vacate the adjudication of the Civil
Service Commission and remand this matter for further proceedings. On remand,
the Civil Service Commission must give probative weight to the testimonial and
admitted documentary evidence that the Game Commission offered to show a lack
of funds and must address Boyd’s testimony that Wheeland’s furlough was
necessitated by a lack of work when the Bureau of Wildlife Management stopped
breeding pheasants and closed two game farms.
______________________________________
MARY HANNAH LEAVITT, President Judge
11
The appointing authority determines what work is necessary to be performed and how that work
can be performed most efficiently. Haskins, 636 A.2d at 1230. It is not this Court’s prerogative
to second guess these decisions. Id. Likewise, the Civil Service Commission lacks this
prerogative.
20
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania, :
Pennsylvania Game Commission, :
Petitioner :
:
v. : No. 608 C.D. 2018
:
State Civil Service Commission :
(Wheeland), :
Respondent :
ORDER
AND NOW, this 18th day of October, 2019, the order of the State Civil
Service Commission dated April 5, 2018, is VACATED and this matter is
REMANDED for proceedings consistent with the attached opinion.
Jurisdiction relinquished.
______________________________________
MARY HANNAH LEAVITT, President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania, :
Pennsylvania Game Commission, :
Petitioner :
:
v. :
:
State Civil Service Commission :
(Wheeland), : No. 608 C.D. 2018
Respondent : Submitted: May 8, 2019
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
DISSENTING OPINION
BY JUDGE COVEY FILED: October 18, 2019
I respectfully dissent from the Majority’s conclusion that the State Civil
Service Commission (SCSC) erred by holding that the Commonwealth of
Pennsylvania, Pennsylvania Game Commission’s (Game Commission) evidence did
not make a prima facie case that Timothy A. Wheeland’s (Wheeland) furlough was
necessitated by lack of funds and in refusing to address the Game Commission’s
evidence that his furlough was also necessitated by a lack of work. Because the
Game Commission’s Executive Director Robert M. Hough’s (Hough) April 7, 2015
Strategic Plan/Budget memorandum (Game Commission Memo), and the November
15, 2016 Furlough Notification letter from the Game Commission’s Administration
Office’s Secretary Sharon Minnich (Minnich) to Hough (Furlough Notification
Letter) were uncorroborated hearsay evidence and the Game Commission’s Wildlife
Management Bureau’s Wildlife Services Division Chief Robert Boyd (Boyd) did not
testify with respect to the budgets, the Game Commission did not meet its burden of
proving that Wheeland’s furlough was necessitated by a lack of funds and/or a lack of
work. Accordingly, I would affirm the SCSC’s order reinstating Wheeland to his
position as Wildlife Maintenance Propagator.
The issue before the Court is not whether Wheeland’s furlough was in
fact necessitated by lack of funds or lack of work, but rather, whether the Game
Commission met its burden of proving said lack of funds or lack of work. Because
the Game Commission was required to make a prima facie showing of lack of funds,
and rather than presenting sufficient evidence, it offered two hearsay documents and
Boyd, who did not lay a foundation for the Game Commission Memo and Furlough
Notification Letter’s admission, nor testify from first-hand knowledge regarding the
Game Commission’s budget, the Game Commission failed to meet its burden.
Initially, the Pennsylvania Supreme Court has clarified: “As commonly
understood, prima facie evidence is ‘[s]uch evidence as, in the judgment of the law, is
sufficient to establish a given fact, or the group or chain of facts constituting the
party’s claim or defense, and which if not rebutted or contradicted, will remain
sufficient.’ Black’s Law Dictionary 825 (6th ed. abridged 1991).” In re L.Z., 111
A.3d 1164, 1185 (Pa. 2015) (emphasis added). By way of example as to what
evidence establishes a prima facie case, although in the context of a criminal case,
our Supreme Court explained:
A prima facie case exists when the Commonwealth
produces evidence of each of the material elements of the
crime charged and establishes sufficient probable cause to
warrant the belief that the accused committed the offense.
The evidence need only be such that, if presented at trial
and accepted as true, the judge would be warranted in
permitting the case to go to the jury.
Commonwealth v. Hoggans, 836 A.2d 862, 866 (Pa. 2009).
AEC - 2
In order to make out a prima facie case of lack of funds, the appointing
authority must present “specific evidence of the need for financial cuts which would
justify the furlough.” Beaver County v. Funk, 492 A.2d 118, 121 (Pa. Cmwlth. 1985)
(emphasis added). The Majority maintains that this case is distinguishable from Funk
because “Boyd provided detail on loss of funding that had been absent from the
county’s testimony in Beaver County.” Majority Op. at 10. However, Boyd merely
repeated what was in the Game Commission Memo and the Furlough Notification
Letter to support the Game Commission’s alleged lack of funding justification. As
stated by the SCSC, “[t]aken as a whole, Boyd’s testimony indicates a decision was
made by the appointing authority to close two game farms, Boyd was directed to
close two of those farms, and that someone made the decision that Northcentral Game
Farm would be one of the two that were closed.” SCSC Adjudication at 14.
Importantly, Boyd had no “personal knowledge of the relationship
between the available funding and the furloughs that were conducted.” Id.; see
Mazurkiewicz v. State Civil Serv. Comm’n (Dep’t of Gen. Servs.) (Pa. Cmwlth. No.
975 C.D. 2013, filed December 20, 2013),1 (wherein, the SCSC affirmed the
Department of General Services’ lack of funding furlough, opining, inter alia, “[t]he
Deputy Secretary ‘testified from first-hand knowledge that using in-house
surveyors would cost nearly three times as much as contracting out all surveyor
work[, and] that elimination of the in-house surveyor unit, and contracting out
surveyor work, constituted a more cost-effective means of providing [] core
services.’” Id., slip op. at 10-11 (emphasis added)).
1
Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code §
69.414(a), this unreported opinion is not binding precedent, but is cited only as an example of what
this Court previously highlighted as sufficient prima facie lack of funding evidence.
AEC - 3
The Majority cites Forbes v. Department of Transportation (PennDOT),
434 A.2d 892 (Pa. Cmwlth. 1981), to support its position that the Game Commission
presented sufficient prima facie evidence to justify a lack of funds furlough.
Specifically, the Majority maintains that the same evidence is relied upon therein as
was offered here. However, in Forbes, the Deputy Secretary of Highway
Administration testified from personal knowledge that “upon learning that the
Legislature had not provided as much revenue as PennDOT needed to maintain its
funding level, the Secretary sent a memorandum to the appropriate staff persons
alerting them to which programs had been cancelled, or curtailed, and directing them
to make modifications in their personnel requirements to reflect the budget
reorganization.” Id. at 894 (emphasis added; footnote admitted).
Here, Boyd merely testified that he “received a copy of [the Game
Commission Memo,]” Reproduced Record (R.R.) at 67a, and although he was carbon
copied on the Furlough Notification Letter, Boyd identified it without giving any
explanation with respect to its issuance or his receipt thereof. See R.R. at 71a.
Moreover, Boyd did not lay a foundation for either document’s admittance into
evidence, but simply repeated what was contained therein.2
Further, the fact that the Forbes opinion only refers to a memorandum
and the Deputy Secretary’s testimony, does not mean that was the only evidence
admitted. A review of the records in this Court’s more recent lack of funding cases
reveals that they all included sufficient, reliable evidence and credible testimony
explaining the funding and the reasons for the decisions made. See Kolega v. State
Civil Serv. Comm’n (Pa. Cmwlth. No. 2056 C.D. 2015, filed October 15, 2015), 2015
WL 6473264 (The Bureau of Teaching and Learning’s Director, the Director of
2
The admissibility of the memorandum in Forbes was not at issue, so the opinion does not
state what, if any, foundation was laid for the admittance of the memorandum therein.
AEC - 4
Human Resources, the Office of Administration’s Director of Labor Relations, and a
budget analyst in the Department’s Bureau of Budget and Fiscal Management
testified. The evidence therein described the federal funding that paid for the
furloughed employee’s position in 2010 and the government operations fund that paid
for the position in 2011.); Carney v. Pa. State Sys. of Higher Educ. (Pa. Cmwlth. No.
1177 C.D. 2013, filed August 14, 2014), 2014 WL 3954072 (The Vice President for
Finance and Administrative Affairs, the Director of Facility Services and the
Assistant Vice President for Human Resources testified. The evidence therein
described the budget shortfalls beginning in 2009, the fiscal year running from July 1,
2010 to June 30, 2011, and the projected budget shortage for fiscal year 2011-2012,
all of which justified the lack of funding to furlough employee on June 20, 2011.);
Mazurkiewicz (The Deputy Secretary for Administration, and the Deputy Secretary
for Public Works testified. The exhibits therein included, inter alia, lists of detailed
expenditures and amounts, and lists of specific salaries, as well as exact costs for
health care, showing the Deputy Secretary’s calculations and cost comparisons.);
Pavia v. Dep’t of Transp., 466 A.2d 735 (Pa. Cmwlth. 1983) (The Deputy Secretary
for Highway Administration, and the Executive Assistant to the Secretary testified.
The Secretary’s memoranda was also admitted into evidence.). The evidence
introduced in the aforementioned cases is in stark contrast to what was presented in
the instant case, and clearly illustrates the deficiency in the Game Commission’s
evidence and consequently its failure to establish a prima facie case herein.
Next, the Majority declares that the SCSC erred by sua sponte
determining the Game Commission Memo and Furlough Notification Letter were
inadmissible hearsay after admitting the documents into evidence. The Majority
states, “[h]ad the Game Commission been aware” there was a concern, “it could have
responded.” Majority Op. at 14. However, before the taking of testimony,
AEC - 5
Commissioner Gregory M. Lane (Commissioner)3 stated: “My two colleagues [and I]
will be deciding this matter based upon the transcript that’s produced here today.”
R.R. at 63a. In addition, upon admission of Wheeland’s documents, the
Commissioner explained: “I’m going to go ahead and admit [sic] for the record. My
colleagues and I understand the circumstances. And what I’ll do is we will give
those the weight they deserve during our adjudication of this matter.” R.R. at
87a (emphasis added). Moreover, after admitting the Game Commission Memo and
the Furlough Notification Letter, the Commissioner again explained:
But that will be most [sic] --- amongst my colleagues and
I to decide how we’re going to look at the facts and the
situation and where the budget constraints really lie and
where they came from, were they self-generated, et cetera,
but --- because our ultimate decision is whether the
furloughs were for proper reasons, being lack of funds or
lack of work.
R.R. at 89a-90a (emphasis added). The Game Commission was well aware that the
entire transcript and all the exhibits would be weighed by all three Commissioners. It
is not the duty of the Commissioner to tell the Game Commission how to present its
case or instruct it to lay a proper foundation for the admission of its documents.
Notwithstanding, it is axiomatic that “[h]earsay evidence, [a]dmitted
without objection, will be given its natural probative effect and may support a finding
of the [SCSC], [i]f it is corroborated by any competent evidence in the record, but a
finding of fact based [s]olely on hearsay will not stand.” Walker v. Unemployment
Comp. Bd. of Review, 367 A.2d 366, 370 (Pa. Cmwlth. 1976) (emphasis added).
3
Although Commissioner Lane heard the appeal, the matter was decided by Commissioner
Lane, Commissioner Bryan R. Lentz and Commissioner Odelfa Smith Preston based on the
transcript. “Due process is satisfied if a hearing is held before one Commissioner, with the other
members subsequently reviewing the testimony before preparing their adjudication.” Hetman v.
State Civil Serv. Comm’n (Berks Cty. Children & Youth), 714 A.2d 532, 537 (Pa. Cmwlth. 1988).
AEC - 6
“The Hearsay Rule is not a technical rule of evidence but a basic, vital and
fundamental rule of law which out [sic] to be followed by administrative agencies at
those points in their hearings when facts crucial to the issue are sought to be placed
upon the record.” Bleilevens v. State Civil Serv. Comm’n, 312 A.2d 109, 111 (Pa.
Cmwlth. 1973). “Indeed, an adjudication of an administrative agency may not be
founded wholly on hearsay evidence[.]” Id. Accordingly, in order to make its
findings, and ultimate ruling, the SCSC had to determine whether the Game
Commission Memo and the Furlough Notification Letter were hearsay, and if so,
whether there existed any competent evidence to corroborate the hearsay evidence.
Because the SCSC found that the Game Commission Memo and Furlough
Notification Letter were hearsay, and “the record is lacking any such corroborative
evidence[,]” SCSC Adjudication at 15, as a matter of law the Game Commission
Memo and Furlough Notification Letter could not support a finding that Wheeland’s
furlough was in fact necessitated by lack of funds.
The Majority further opines that the documents should have been
admitted under the business records and public records exceptions to the hearsay rule.
Pennsylvania Rule of Evidence (Rule) 803(6) provides:
Records of a Regularly Conducted Activity. A record
(which includes a memorandum, report, or data compilation
in any form) of an act, event or condition if:
(A) the record was made at or near the time by--or from
information transmitted by--someone with knowledge;
(B) the record was kept in the course of a regularly
conducted activity of a ‘business’, which term includes
business, institution, association, profession, occupation,
and calling of every kind, whether or not conducted for
profit;
(C) making the record was a regular practice of that
activity;
AEC - 7
(D) all these conditions are shown by the testimony of
the custodian or another qualified witness, or by a
certification that complies with Rule 902(11) or (12) or
with a statute permitting certification; and
(E) the opponent does not show that the source of
information or other circumstances indicate a lack of
trustworthiness.
Pa.R.E. 803(6) (text emphasis added). Rule 803(8) provides:
Public Records. A record of a public office if:
(A) the record describes the facts of the action taken or
matter observed;
(B) the recording of this action or matter observed was an
official public duty; and
(C) the opponent does not show that the source of the
information or other circumstances indicate a lack of
trustworthiness.
Comment: Pa.R.E. 803(8) differs from [Federal Rule of
Evidence] 803(8) insofar as it reflects the hearsay exception
for public records provided in [Section 6104 of the Judicial
Code,] 42 Pa.C.S. § 6104. See Rules 901(b)(7) [(relating to
authenticating public records)], 902(1)-(4) [(relating to self-
authenticating documents)] and [Sections 5328, 6103 and
6106 of the Judicial Code,] 42 Pa.C.S. §§ 5328 [(relating to
proof of official records)], 6103 [(relating to proof of
official records)], and 6106 [(relating to certified
exemplifications of records)] for authentication of public
records.
Pa.R.E. 803(8) (text emphasis added).
With respect to the admissibility of the Game Commission Memo, Boyd
testified:
A. Yes. This is a memo from [] Hough, our Executive
Director at the time, dated April 7th, 2015, about two years
ago, regarding a strategic plan and budget situation of the
Game Commission that was sent to all Game Commission
staff.
AEC - 8
BY ATTORNEY MARTSON:
Q. And you received a copy of that memorandum?
A. Yes.
R.R. at 67a. Similarly, relative to the foundation for the Furlough Notification Letter,
Boyd only declared:
Q. [] Boyd, I’m presenting you with an exhibit that’s been
pre-marked as AA-2. Can you explain to the [c]ourt what
that --- what that document is, please?
A. Yes. This was a memo from [] Hough, our Executive
Director at the time, to [] Minnich, Secretary of
Administration, Office of Administration, announcing plans
to furlough, close two [g]ame [f]arms and furlough 13
people. And this was dated November 15, 2016.
R.R. at 71a. Clearly, this testimony does not satisfy the conditions of the hearsay rule
exceptions for establishing that either document qualifies as a regularly conducted
activity record or a public record. Accordingly, the SCSC properly determined that
the documents were hearsay evidence.4
The Majority maintains that notwithstanding the above, Boyd
corroborated the documents. Specifically, the Majority states: “Boyd testified,
without contradiction, from his own knowledge about the cause of the Game
Commission’s lack of funds: a decline in natural gas revenue followed by the
General Assembly’s refusal to approve a pheasant hunting license or an increase
in hunting license fees.” Majority Op. at 16 (emphasis added). However, Boyd’s
testimony with respect to the decline in natural gas revenues came directly from the
Game Commission Memo. Boyd testified:
4
The only case wherein this Court accepted a memorandum as sufficient lack of funding
evidence was Sharp v. Department of Transportation, 447 A.2d 1057 (Pa. Cmwlth. 1982). Therein,
the issue of the memorandum’s admissibility was raised based on hearsay, but the Court determined
that the issue was waived as not properly preserved, and on that basis alone, declared it was
permitted to consider it.
AEC - 9
Well, the [Game Commission M]emo lays out our
situation. And at that time, aside from the strategic plan
things that are discussed, it talks about an increase in our
expenditures in terms of personnel costs due to healthcare
and retirement contributions, but also a reduction in
revenue from Marcellus shale.
R.R. at 67a-68a (emphasis added). Further, relative to the General Assembly’s
refusal to approve a pheasant hunting license or an increase in hunting license fees,
Boyd was asked: “What does the [Furlough Notification Letter] say about the reasons
for furloughs[?]” R.R. at 71a-72a. Boyd responded:
Well, it mentions the fact that we didn’t get our license
fee increase in the last legislative session . . . . It also
mentions the fact that we tried to generate some revenue
related to the program. And that comes in the form of a
pheasant[-]hunting permit, which has never been in
place before.
R.R. at 72a (emphasis added). Clearly, Boyd did not testify from his personal
knowledge, but rather what he learned from the Game Commission Memo and
Furlough Notification Letter. Accordingly, Boyd did not corroborate either
document.
Moreover, the SCSC expressly rejected Boyd’s testimony which it had
the right to do. “Questions of credibility and the weight to be accorded evidence are
determined by the [SCSC], and this Court will not re-weigh the evidence or substitute
its judgment even though it might have reached a different factual conclusion.”
Thompson v. State Civil Serv. Comm’n, 863 A.2d 180, 184 (Pa. Cmwlth. 2004). The
SCSC opined:
In short, the [Game Commission] has failed to establish that
Boyd had any direct role in the actual decision to close the
Northcentral Game Farm and furlough the employees, that
he had direct knowledge of the insufficiency of the
revenues as purported in the memoranda, or that he had
personal knowledge of the relationship between the
available funding and the furloughs that were conducted.
AEC - 10
SCSC Adjudication at 14. The Majority engages in fact finding by stating otherwise,
which is beyond this Court’s authority.
The Majority next asserts that the SCSC erred by not addressing whether
lack of work necessitated Wheeland’s furlough. “[A]n appointing authority has
demonstrated a lack of work when it establishes that: (1) the employee’s position was
eliminated; (2) reorganizational streamlining occurred; and (3) management in good
faith believed that work could be accomplished more efficiently in the absence of the
eliminated position.” Stover v. Dep’t of Envtl. Res., 636 A.2d 1275, 1277 (Pa.
Cmwlth. 1994).
The entirety of the Game Commission’s lack of work evidence consisted
of Boyd’s testimony that two pheasant farms were closed, and Boyd’s declaration:
Q. Mr. Boyd, is it necessary to have additional Wildlife
Maintenance Propagators in order to raise the chicks at the
remaining farms?
A. No. We’re --- we’re planning to make do with the
existing staff at the Southwest and Loyalsock Game Farms.
Q. And is there other work at the remaining farms that
Wildlife Maintenance Propagators are needed to perform?
A. Again, no unmet needs at this time.
R.R. at 73a-74a. In fact, Boyd never expressly testified that Wheeland was
furloughed because the pheasant farm where Wheeland worked was closed.
Moreover, when asked on cross-examination why people were still working at the
closed farm where Wheeland worked, Boyd offered:
A. There is work to be done, but the work is being met by
the Loyalsock Game Farm staff. There’s --- there will be
some grass to be mowed. There will be some assets to be
moved around and that sort of thing, but we don’t really
need extra staff to do that.
AEC - 11
Q. That’s --- that’s not how you answered the question,
though, is it? Didn’t you say that there was no further work
that needed to be done?
A. No. I said there was no unmet needs in terms of
manpower.
R.R. at 75a-76a.
While not clearly articulated, the Game Commission’s lack of work
argument appears to be that because the farms were closed there is no work for the
farms’ employees. However, in Silverman v. Department of Education, 454 A.2d
185 (Pa. Cmwlth. 1982), the SCSC reasoned that because the employee’s previous
position had been abolished, the automatic consequence was a lack of work that
justified his furlough. The Silverman Court in vacating the SCSC’s adjudication
explained:
In [Department of Public Welfare v.] Magrath, [321 A.2d
403 (Pa. Cmwlth. 1974),] we upheld the elimination of a
regular employee’s position and his consequent furlough on
the ground of lack of work. However, in Magrath, the
elimination of the position resulted from the lack of work.
In the instant case, the elimination of [the employee’s]
position brought about the lack of work in the position.
Under the [SCSC’s] reasoning, the mere elimination of a
position would be enough to warrant the furloughing of a
regular employee, regardless of whether or not there was an
actual lack of work for people in the same class or status.
Silverman, 454 A.2d at 190. Similarly, in the instant case, since the closing of the
farms led to the lack of work, this determination rests on whether the Game
Commission presented reliable evidence to establish a prima facie case that there was
a lack of funding to justify the closing of the farms.
The Majority maintains:
As Boyd fully explained, the Bureau of Wildlife
Management has stopped breeding pheasants and, instead,
is buying day-old chicks from a private vendor. The Game
Commission closed the North Central and Western Game
AEC - 12
Farms because they lacked the pen capacity to handle the
purchased chicks. The Game Commission did not transfer
Wheeland’s work as a propagator to other employees.
Majority Op. at 18-19. Notwithstanding, even if Boyd had direct knowledge with
respect to the choosing of which farms to close, without credible testimony of the
lack of funds that required the closing of any farms, the evidence is insufficient to
justify the lack of work furlough. As discussed above, the SCSC expressly rejected
Boyd’s testimony which it had the right to do.
Given that the Game Commission did not meet its burden of proving the
lack of funding justification and no evidence was presented to establish the lack of
work, the Dissent concludes that the Game Commission did not meet its burden of
proving: “reorganizational streamlining occurred; and [] management in good faith
believed that work could be accomplished more efficiently in the absence of the
eliminated position.” Stover, 636 A.2d at 1277. Accordingly, the SCSC properly
concluded that the Game Commission did not prove a valid justification for the
furlough.
The Dissent is in no manner discouraging the Commonwealth from
streamlining its operations or saving money. Rather, the Dissent explains that the
Game Commission, and any other administrative agency, is required to present
sufficient, credible evidence, not merely rely on hearsay documents. The Dissent
does not opine that the Game Commission did not have sufficient reasons to furlough
its employees, but rather that the Game Commission failed to present credible,
nonhearsay evidence to substantiate its actions. To rule to the contrary is not in
accord with this Court’s well-established precedent and even the more lenient
evidentiary rules.
The Majority’s position fosters a tremendous negative effect by allowing
a governmental entity to prove its case solely through hearsay documentation that
AEC - 13
contains no basis for its furlough decision beyond the fact that the decision was
made. In this particular case, the Game Commission’s failures are even more
egregious in that it did not even establish that Wheeland worked at one of the two
farms that were closed. This clearly is not the standard and this Court should not
support the Game Commission’s sloppiness as the new standard for proving lack of
funding and/or lack of work. It is irrelevant whether the Game Commission had a
legitimate basis for its decision. The question before the SCSC and this Court is
whether the Game Commission presented the required minimal evidence to support
its furlough decisions; it clearly did not do so.
For all of the above reasons, the Dissent would affirm the SCSC’s order.
__________________________
ANNE E. COVEY, Judge
Judge McCullough and Judge Wojcik join in this dissenting opinion.
AEC - 14