Williams v. Civil Service Commission ( 1973 )

Opinion by

Judge Blatt,

Alfred B. Williams (Williams) was employed by the Department of Public Welfare (Department) as a Youth Development Counselor I, regular status, at Youth Forestry Camp No. 3 in Huntingdon County. In the early morning hours of September 20, 1971, he discovered three students outside the dormitory building, apparently attempting to escape. He took them to his office, where they were joined by a fourth, who admitted that he had also planned to join in the escape attempt. Williams tallied with the boys for about two hours, then sent them back to bed. He said he thought that, if he could get even one of them to sleep, it would end the entire plan to escape. Three of the boys returned to their own beds in one of the rooms, but the fourth, who was normally housed in another wing, also went to a vacant bed in the same room with the others. There is a dispute between the students and Williams as to whether or not he accompanied them to the room, but, even if he did, he apparently failed to note that none of the boys removed his clothes before lying down on his bed. Williams says that he looked in on the boys once after they had presumably gone to bed, but, the boys soon after that absconded, stealing a camp vehicle and riding away in it. They were subsequently captured and returned to the camp. Williams admittedly took no special precautions to prevent the second attempted escape.

The Director of the Camp requested an investigation of the incident by the State Police, interviewed the four students concerned and also gave Williams an opportunity to present his version of the incident. Subsequently, in a letter dated October 26, 1971, the Camp Director dismissed Williams from his position. This letter stated the reasons for dismissal as follows: “You in the early morning of September 20, 1971 were grossly negligent in your handling of a situation in which four students absconded from Dormitory B, Youth Forestry Camp #3, in a stolen state vehicle. Having-prior knowledge of their planned runaway, you did not take the appropriate and necessary action in terms of preventive measures. Illustrative of this is that you permitted all four students to sleep in the same dormitory wing fully clothed even though you were aware that one student was assigned to the opposite wing of the building. You also used extremely poor judgment in the manner in which you counseled them concerning the situation. As a result of this negligence, these students broke into the administration building and then stole a state owned vehicle, endangering both themselves and the public in general.”

Williams filed a timely appeal with the Pennsylvania Civil Service Commission (Commission), which, following a hearing, handed down an adjudication sustaining the dismissal. The Commission made the following pertinent findings of fact:

“7. Appellant was aware that four students had plans to abscond.

“8. The four students had a history of absconding.

“9. Appellant found three of the students outside the dormitory; they returned to the office with him and were joined by a fourth student who stated he also planned to abscond.

“10. After talking with the students, appellant failed to take any further precautions to prevent an abscondence including making certain the students removed their clothes on returning to bed.

“11. Appellant failed to observe that one of the four students did not return to his own bed in another wing, but took a vacant bed in the room with the other three students.” The Commission also noted that Williams was aware of a number of measures which had been recommended to the staff to prevent escapes, although these were not set forth in any written regulations. Among such measures were: calling a group meeting, taking the boys’ clothes and shoes, sitting where the counselor could observe the dormitory, or having a student “junior counselor” sit there to observe. The Commission pointed out that Williams not only failed to take any of these measures to prevent the second escape attempt, but that he also testified to having told one of the students involved that, if they ran, he could do nothing about it.

“On appeal to this Court, an adjudication of the State Civil Service Commission shall be affirmed unless it appears that such was not in accordance with law, that any finding of fact necessary to support such adjudication is not supported by the evidence or that the constitutional rights of the appellant have been violated. Department of Transportation v. State Civil Service Commission, 5 Pa. Commonwealth Ct. 263, 290 A. 2d 434 (1972). It is the duty of the State Civil Service Commission to determine the credibility of witnesses, appearing before the Commission and to determine the value of their testimony. Mettee v. Civil Service Commission, 6 Pa. Commonwealth Ct. 82, 293 A. 2d 147 (1972). This Court will not weigh, but only examine, the evidence and will not substitute its judgment for that of the Commission. Gibbs v. State Civil Service Commission, 3 Pa. Commonwealth Ct. 230, 281, A. 2d 170 (1971).” Ricker v. Civil Service Commission, 7 Pa. Commonwealth Ct. 329, 332, 300 A. 2d 293, 295 (1973). See Corder v. Civil Service Commission, 2 Pa. Commonwealth Ct. 462, 279 A. 2d 368 (1971).

Guided by these well established principles, we must hold, of course, that Williams could be removed from his position as a regular employee only for “just cause.”¹ And, as we have previously stated: “We are able to discern that the legislative intent relating to one’s relationship with the classified service turns upon a merit concept. This means that any ‘personnel action’ carried out by the Commonwealth is to be scrutinzed in the light of such merit criteria, as has the party failed to properly execute his duties, or has he done an act which hampers or frustrates the execution of same. The criteria must be job-related and in some rational and logical manner touch upon competency and ability.” Corder, supra, 2 Pa. Commonwealth Ct. at 467, 279 A. 2d at 371.

If Williams was in fact guilty of gross negligence in the performance of his duties as charged, therefore, it is clear that this would be “just cause” for his removal. The question is whether or not the Commission had before it competent evidence to prove this employee’s gross negligence. We believe that it did.

We believe “gross negligence” on the part of such an employee would consist of a failure to perform a duty in reckless disregard of the consequences or with such want of care and regard for the consequences as to justify a presumption of willfulness or wantonness. Reasonably exercising his judgment as to whether or not a given action should or should not be taken would not in itself constitute gross negligence, of course, but here Williams was guilty of much more than a mere error in judgment. His actions or failures to act, under the given circumstances of this case, were clearly such that the Commission was justified in viewing his conduct as grossly negligent. We must hold, therefore, that there were sufficient grounds for dismissal.

It must be remembered that Williams was a veteran of eight years service as a counselor. His own testimony makes it clear that he knew that the students might not yet have given up their plans to escape when he sent them to bed. However, he did not supervise their returning to bed, he permitted one of the students to sleep in the room with the other three even though that boy did not belong there, he took no note that all of the students lay down on their beds fully clothed, and he failed to keep watch to insure that they did not make another escape attempt. In addition, Williams took none of the preventative measures which had been discussed at various staff meetings in his presence. While he freely indicated his awareness that the boys might again seek to abscond, he still, as the Commission stated, “in effect washed his hands of the matter.” And, as the Commission continued: “This is not exercising a judgment. It is negligence in not even following through on what appellant stated to be his own plan of action or else it indicates such a lack of concern as to whether the students ‘ran’ or not as to in fact have encouraged them to do so.” We agree.

We find no merit, either, in Williams’ further claim that he was deprived of due process. He bases this claim on the fact that the Regional Director of the Department did not conduct an independent review of the matter but merely accepted the dismissal recommendation of the Camp Director. There is, however, no legal requirement for such an independent investigation. On the contrary, all requirements of the Civil Service Act and of the Rules thereunder seem to have been followed in this case. A more than adequate investigation was made of the incident, proper notice was given to Williams of the charges against him, he was given full opportunity to appeal to the Commission, and he took advantage of this opportunity. Nor was it a violation of due process to dismiss Williams without granting him a Department hearing as he also claims, for he did have a clear right to a subsequent hearing before the Commission, which he exercised. Cf. Grausam v. Murphey, 448 F. 2d 197 (3d Cir. 1971).

For the above reasons, therefore, we issue the following

Order

Now, June 29, 1973, the Order of the Civil Service Commission sustaining the action of the Department of Public Welfare dismissing Alfred B. Williams as a Youth Development Counselor I is hereby affirmed.

1 Civil Service Act, Act of August 5, 1941, P. L. 752, §807, as amended, 71 P.S. §741.807.