G. Bundy v. City of Philadelphia CSC

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Gregory Bundy, :
Appellant :
:
v. : No. 436 C.D. 2016
: Argued: February 7, 2017
City of Philadelphia Civil :
Service Commission, :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JULIA K. HEARTHWAY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: March 9, 2017
In this appeal, Gregory Bundy (Bundy) asks whether the Court of
Common Pleas of Philadelphia County (trial court) erred in affirming a decision of
the Philadelphia Civil Service Commission (Commission) that dismissed Bundy’s
appeal from the City of Philadelphia (City) Streets Department’s decision to
terminate his employment. The decision to terminate Bundy’s employment
stemmed from his refusal to submit to a drug and alcohol test after a motor vehicle
accident in which Bundy killed a pedestrian while driving a City-owned vehicle on
way his home from a work site.
Bundy argues the Commission erred in: (1) ignoring the plain
language of the City’s Drug and Alcohol Policy (Policy); (2) upholding his
termination based on the Policy, which does not contain language relating to off-
duty conduct; and, (3) finding that Bundy was terminated for just cause absent
evidence to establish a nexus between Bundy’s purported misconduct and his
ability to execute his job duties. Upon review, we affirm.
I. Background
A. Basis for Dismissal
The Streets Department sets forth the following background and basis
for Bundy’s dismissal from employment. Bundy was an employee in the City’s
Streets Department. He was initially appointed as a Heavy Equipment Operator II
in the Highway Division. Thereafter, he was promoted to Asphalt Paving Crew
Chief. Bundy was later promoted to Streets Repairs Supervisor, a position he held
until his dismissal from employment. Over the course of his employment, Bundy
received written warnings for the following infractions: conduct; failure to check
routes; quality of work; and, disobedience.
At approximately 8:10 p.m. on April 12, 2014, Bundy was involved in
a motor vehicle accident while operating a City-owned vehicle, which resulted in
the death of a pedestrian. On that date, Bundy clocked out of work at 5:00 p.m.
One of Bundy’s supervisors, Steven Lorenz (Lorenz), received a work-related
email from Bundy at 5:40 p.m., but Lorenz could not account for Bundy’s time
between the email and the accident. Bundy next contacted Lorenz at 9:10 p.m.,
after the accident. When asked about his reasons for operating a City-owned
vehicle at that time of evening, Bundy indicated he was on his way home from a
work site. The City deemed Bundy’s actions an unauthorized use of a City-owned
vehicle, a violation of Streets Order No. 100, the Streets Department’s Disciplinary
Code.
2
The City further indicated that, after Philadelphia Police concluded its
investigation at the accident scene, police transported Bundy to Police Department
Headquarters for a drug and alcohol screening. Lorenz instructed Bundy that the
screening needed to be performed. The Streets Department subsequently learned
that Bundy refused the drug and alcohol screening after arriving at Police
Department Headquarters.
The City’s Risk Management Department determined Bundy’s refusal
to submit to drug and alcohol testing was an admission that Bundy was under the
influence of a controlled substance, and, therefore, was in violation of the Policy.
The City noted that under Streets Order No. 100, this was a
dismissible offense. The City also determined that Bundy’s insubordination in
disregarding his supervisor’s instruction to undergo the screening constituted a
separate violation of Streets Order No. 100.
For these reasons, the City held a hearing in July 2014. Lorenz,
Kenneth Wilson (Wilson), Human Resources Manager, Ryan Sibert, Human
Resources Professional and Stanley Shelton (Shelton), a union representative,
attended the hearing. Lorenz determined that Bundy should be placed on
suspension without pay as of July 16, 2014, pending dismissal. Bundy then
attended an appeal hearing with Streets Department Commissioner David Perri,
Wilson and Shelton. Ultimately, the Streets Department Commissioner determined
dismissal was appropriate. As a result, Bundy remained on suspension without pay
from July 16, 2014 until his dismissal. Bundy filed an appeal to the Commission.
3
B. Commission Proceedings
1. Commission Hearing
The Commission held a hearing. At the hearing, Lorenz, who serves
as a Chief Highway Engineer, testified on behalf of the Streets Department.
Lorenz explained that on Saturday, April 12, 2014, Bundy called to inform him he
was involved in an accident, police were present and he needed a supervisor to
come to the scene. When Lorenz arrived at the accident scene a short time later,
Bundy appeared distraught. Lorenz spoke to the police officer at the scene and
learned the accident resulted in a fatality. Police asked Lorenz to stay with Bundy.
At that time, Lorenz asked Bundy to take a blood test for drug and alcohol
screening. The Policy allows for a drug and alcohol test after any accident
involving a City-owned vehicle. The police officer stated he was willing to
transport Bundy to police headquarters for testing. At that time, Bundy agreed to
the blood test. Lorenz testified that if the police officer did not agree to arrange for
Bundy to undergo blood testing at police headquarters, Lorenz would have directed
Bundy to a hospital for testing. Bundy then left the accident scene with a police
officer, although he was not under arrest. Lorenz offered to accompany Bundy,
but Bundy declined. When Bundy left the scene, Lorenz was under the impression
that Bundy was going to submit to a drug and alcohol test.
Lorenz did not speak with Bundy the next day, which was a Sunday.
On Monday morning, Lorenz learned from the Streets Commissioner that Bundy
refused the drug and alcohol test. Bundy subsequently took some time off of work.
Although Bundy’s refusal to submit to testing was considered an admission of
guilt, the Streets Department did not initiate disciplinary action until Bundy was
cleared to return to work. Bundy returned to work in June or July, at which time a
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disciplinary hearing was conducted. At that time, Bundy was charged with
insubordination, unauthorized use of a City-owned vehicle and driving under the
influence (DUI). Bundy did not offer a defense at that time, and he was
recommended for dismissal.
Police Officer Michael Godlewski also testified on behalf of the
Streets Department. Officer Godlewski’s supervisor directed him to perform a
DUI test on Bundy after the accident. Officer Godlewski went to the Police
Detention Unit (PDU) where Bundy was in the bay area in the backseat of a police
car. Officer Godlewski asked Bundy if he would take a blood or breath test, to
which Bundy responded, “no.” Commission Op., 6/11/15, at 3. Officer Godlewski
informed the police officer who transported Bundy that Bundy refused to submit to
testing.
In addition, Police Officer James Tonkinson testified on behalf of the
Streets Department. Officer Tonkinson works in the Accident Investigation Unit,
and he was at the scene of the accident. Officer Tonkinson spoke to Bundy,
conducted a formal interview and took notes. He asked Bundy to voluntarily
submit to a blood test. Because Bundy did not appear intoxicated, Officer
Tonkinson lacked probable cause to require Bundy to submit to a blood test.
However, the Accident Investigation Unit’s policy is to request a blood test from
all parties involved in fatal accidents. Officer Tonkinson arranged for Bundy’s
transport to police headquarters.
5
Police Officer Charlene Joyner also testified on behalf of the Streets
Department. Officer Joyner is assigned to the Traffic Unit, and she was at the
accident scene for about 40 minutes before her supervisor ordered her and the
Accident Investigation Officer to transport Bundy to the PDU for further
processing. Officer Joyner drove Bundy to the PDU for chemical testing. Bundy
rode in the backseat of her car, and Officer Joyner noticed Bundy was on the phone
during the ride, but she could not hear the conversation. Bundy told Officer Joyner
that he no longer wished to take the drug and alcohol test, and Officer Joyner
called the Accident Investigation Officer to inform him.
Bundy presented the cross-examination testimony of Wilson, the
Streets Department’s Human Resources Manager, who attended Bundy’s
unemployment compensation hearing. Wilson testified he was unaware whether
Bundy signed a consent form to undergo a drug and alcohol test on the night of the
accident. The consent form is attached to the Policy as an appendix. On direct
examination, Wilson testified he was not present at the accident scene, and he was
not aware of any documents Bundy signed on the night of the accident.
The parties stipulated to the testimony of Lakisha Hayes (Hayes), a
Streets Department employee, as follows: Bundy offered Hayes a ride home on the
night of the accident and she accepted; Bundy was sober, and Hayes would not
have accepted a ride from him if he was not; Bundy dropped Hayes off at home
approximately 20 minutes after leaving the work site, and Bundy left almost
immediately to go home; and, Hayes did not see Bundy again that night. Upon
additional questioning from the Commissioners, Hayes testified she worked
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overtime on the day of the accident. Bundy drove her home around 7:10 or 7:15
p.m.
Bundy also testified on his own behalf. On the day of the accident, he
worked all day, clocked out at 5:00 p.m. and released some employees for the day.
Because of budget concerns, Bundy was not authorized to work after 5:00 p.m., so
he did not remain clocked in, but he continued to work because he needed to set up
work schedules for the following week. Bundy testified he had “take-home
privileges” with a City vehicle, which meant he drove a City-owned vehicle to and
from work. Commission Op. at 4.
After Bundy finished working on the day of the accident, he drove
Hayes home. He considered returning to work, but decided against it and began
traveling west on Interstate 76 towards his home. At approximately 8:10 p.m., he
was traveling in the right lane when something appeared and startled him. He
thought his mirror hit something so he pulled over to investigate. He observed a
woman crying and saw another individual on the ground. Bundy walked back to
his vehicle and called 911. He also called his direct supervisor, who did not
respond, so he called Lorenz. Eventually, police arrived and Bundy remained at
the scene for three to four hours. Lorenz arrived at the scene around 9:00 or 9:30
p.m. Bundy later learned that the individual on the ground died. Bundy denied
that Lorenz asked him to take a drug and alcohol test, but he admitted that Officer
Tonkinson asked him to take a blood test. Bundy testified that if Lorenz would
have asked him to take a drug and alcohol test, he would have complied. When he
was transported to the PDU, he did not believe he was taking the test for City
7
purposes. Bundy denied telling Officer Godlewski or Officer Joyner that he
refused the test.
Bundy also testified to his understanding of the Streets Department’s
“reasonable suspicion” drug testing policy, which he was required to administer
because he held a supervisory position. He indicated that he never heard of police
administering drug and alcohol testing in lieu of the City. Bundy testified he did
not believe he was on-duty at the time of the accident because he already clocked
out and was headed home. He only knew he needed to call his supervisor. Bundy
denied that he was drunk or that he consumed alcohol on the day of the accident.
Bundy explained that he did not return to work the Monday after the
accident because he had a hard time coping with the fact that someone died as a
result of the accident. He was diagnosed with post-traumatic stress disorder, and
he was on leave until he was cleared to return to work in July 2014.
2. Commission Decision
Ultimately, the Commission determined the Streets Department met
its burden of proving just cause existed for Bundy’s dismissal from employment.
The Commission noted that, once it was proven that a public employer sanctioned
an employee for just cause, it could not modify or reverse the sanction imposed by
the public employer.
Initially, the Commission determined the Policy applied here where a
City employee with “take home” privileges was involved in an accident while
returning home from work. Bundy argued the Policy did not apply because the
8
accident did not occur while he was on duty, and, to be operative, the Policy
required that the accident occur while he was on-duty. On the other hand, the
Streets Department asserted that the Policy did apply. The Commission agreed
with the Streets Department.
In so doing, the Commission stated that a strict reading of the Policy
language focused on by Bundy did not take into account the spirit and intent of the
Policy, which was to create a safe working environment for “City employees and
all citizens.” Commission Op. at 6. In order to protect its citizens, the
Commission explained, the City must hold employees accountable when they are
operating City-owned vehicles. Thus, the Commission determined it was
reasonable to assume the City intended to cover both employees driving during
work hours, breaks and lunch, as well as commuting times for employees with
“take home” privileges. Id.
Further, the Commission stated, despite Bundy’s argument, he still
followed the Policy’s protocol on post-accident procedures by alerting his
supervisor immediately after the accident. The Commission indicated this act
showed Bundy knew he had an obligation to follow City policies while driving a
City-owned vehicle even though he was not “on the clock” at the time of the
accident. Id.
In finding the Policy applied, the Commission stated, it was
constrained to deny Bundy’s appeal for multiple reasons. First, the Commission
noted, other than the instant disciplinary action, Bundy was a long-standing City
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employee with an almost unblemished record. Nevertheless, the Commission
found the testimony of the Streets Department’s witnesses more credible than that
of Bundy. Specifically, as to Lorenz’s testimony, the Commission found that he
ordered Bundy to take a drug and alcohol test, and that he allowed police to
conduct the test as part of its investigation. Although Bundy testified Lorenz never
ordered him to take a drug and alcohol test, the Commission expressly rejected
Bundy’s testimony. As a supervisor, the Commission stated, Bundy should have
been well aware of the Policy, which allowed for drug and alcohol testing after an
accident in a City-owned vehicle. In light of the tragic nature of the accident, the
Commission stated, it did not believe Lorenz would fail to order a drug and alcohol
test as allowed by the Policy.
The Commission found Officer Tonkinson’s testimony particularly
persuasive. To that end, Bundy testified he did not refuse the drug test at the PDU,
but that Officer Joyner advised him he no longer needed to take the test. However,
Officer Tonkinson credibly testified he asked Bundy to volunteer for a test because
he did not have probable cause to require Bundy to submit to testing. Further, and
most importantly, Officer Tonkinson testified he asked Bundy to volunteer for a
test because it is his unit’s policy to seek drug and alcohol tests for all parties
involved in fatal accidents. Absent any evidence to the contrary, the Commission
stated, it had no reason to believe the Accident Investigation Unit would suddenly
abandon its accident investigation procedures and decide not to test Bundy.
For these reasons, the Commission concluded Bundy did, in fact,
refuse drug or alcohol testing once he arrived at the PDU. It determined Bundy’s
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refusal to submit to drug and alcohol testing constituted misconduct and supported
a finding of just cause for his dismissal. Bundy appealed to the trial court.
C. Trial Court Decision
Without taking additional evidence, the trial court dismissed Bundy’s
appeal. Bundy appealed to this Court, and the trial court directed him to file a
concise statement of the errors complained of on appeal, which he did. The trial
court then issued an opinion in support of its order pursuant to Pa. R.A.P. 1925(a).
In its opinion, the trial court discerned no error in the Commission’s
interpretation or application of the Policy. The trial court stated:
[Bundy] argues that the Commission erred in [its
determination], as it examined the ‘spirit and intent’ of
the Policy rather than its plain language.
Notwithstanding the language of the Policy, this court
cannot disagree with the Commission’s reasoning. If
[Bundy] were [sic] to be reinstated, that reinstatement
would, indeed, render the Policy useless. All any
employee, driving a City-owned vehicle involved in an
accident and after refus[ing] a test, would need to do in
order to avoid disciplinary charges would be to drive the
vehicle and claim they were [sic] not on the clock. As
[Bundy] himself testified, even if an employee was not
on the clock, that does not necessarily mean they are [sic]
not conducting City business or still working. The Policy
provides numerous other safeguards, such as prohibiting
the use of alcohol during lunch and break periods. The
Policy states that employees operating motor vehicles
must not take medication impairing their ability to
function. The purpose of the Policy is to establish that all
of the premises and motor vehicles used by the City shall
be maintained as a safe, alcohol free environment, for the
protection of both citizens and employees. … The Policy
provides that refusal to cooperate in a drug or alcohol test
will result in a positive test result. Streets Order 100
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provides that being under the influence of an intoxicating
substance carries a penalty of suspension with intent to
dismiss. The section of the Policy covering Post Accident
Procedures does not require reasonable suspicion or that
the test be given at the [medical evaluation unit]. It states
only that an employee involved in an accident must be
readily available for testing, if so ordered by his
supervisor, who he is also required to contact.
Consequently, this court cannot find an error of law in
the Commission's determination that the Policy applied
to [Bundy] where he was driving a City-owned vehicle
and was involved in a fatal accident despite the fact that
he had officially clocked out of work at 5:00 p.m. and
continued to work until 7:00 p.m.
Additionally, the Commission’s findings were
supported by substantial evidence …. In the instant case
the Commission made credibility determinations, namely
that [Bundy’s] testimony that Officer Tonkinson [did not]
[instruct] him to take the drug test, and that the police
informed him he was free to go, were not credible. The
Commission found the testimony of [Bundy’s] supervisor
[Lorenz], credible, namely that Lorenz ordered [Bundy]
to take a drug test. The Commission additionally found
the testimony of Officers Joyner, Tonkinson, and
Godlewski credible, namely, that [Bundy] initially agreed
to go to police headquarters to take the test but that he
later withdrew his consent as soon as he arrived at police
headquarters. Further, the record also does not support
[Bundy’s] version of events. Police records included as
exhibits show that [Bundy] did not stop immediately, as
he testified, but that another motorist followed him to
stop him and blocked his vehicle from leaving. Police
Corporal John Niles of the Pennsylvania State [Police]
noted that he advised another trooper to keep an eye on
[Bundy] as he may have been trying to leave the scene.
Lorenz himself stated, in his recommendation for
disciplinary action, that [Bundy] was being
uncooperative at the scene and that he instructed [Bundy]
to have a test done, and that there was some ‘back and
forth’ with [Bundy] regarding the test before he was later
informed [Bundy] had refused the test. Officer Joyner
stated that [Bundy] had been on the phone while she
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transported him to Police Headquarters and that he told
her that he did not trust the police.
In the instant case the record did support that
[Bundy] was ordered to take the test by Lorenz, and that
he refused. This is the reason the [Streets] Department
dismissed him, and the reason the Commission upheld
his dismissal. As such, the dismissal was proper and
should be affirmed.
Tr. Ct., Slip Op., 6/17/16, at 15-17 (citations omitted). This matter is now before
us for disposition.
II. Issues
On appeal,1 Bundy asserts the Commission erred in: (1) ignoring the
plain language of the Policy and instead utilizing a “spirit and intent” it created to
nullify the Policy’s express terms, thereby creating a new policy, which it then
applied to Bundy; (2) upholding Bundy’s termination based on the Policy, which
the City conceded did not contain language governing off-duty conduct; and, (3)
finding that Bundy, an 18-year veteran of the Streets Department, was terminated
for just cause absent any evidence establishing a nexus between Bundy’s non-
participation in a voluntary blood test conducted by Philadelphia Police at police
headquarters and his ability to execute his job duties.
1
A court’s review of a municipal civil service commission is limited. Where a full and
complete record is made of the proceedings before a municipal civil service commission, a
reviewing court must affirm the adjudication unless it is in violation of the constitutional rights
of the appellant or not in accordance with law, the procedural provisions of the local agency law
are violated or a finding of fact of the commission necessary to support its adjudication is not
supported by substantial evidence. Davis v. Civil Serv. Comm’n of Phila., 820 A.2d 874 (Pa.
Cmwlth. 2003).
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III. Discussion
A. Interpretation and Application of the Policy
1. Contentions
Bundy first argues the Commission erred in ignoring the Policy’s
unambiguous language and refusing to apply the plain meaning of its terms.
Instead, he contends, the Commission created a “spirit and intent” standard to
nullify the Policy’s valid terms so that it could apply or interpret the Policy how it
wished.
Bundy asserts the Policy, a contract negotiated and bargained for by
and between the City and various unions and which bound both the City and every
one of its non-uniformed employees, must be interpreted in accordance with
general principles of contract interpretation. Bundy then sets forth general
principles of contract interpretation, and he argues, where, as here, a contract is
unambiguous, a reviewing tribunal should not look beyond the contract’s language
in interpreting the meaning of its terms.
Here, Bundy argues he was terminated on the ground that he violated
Section C of the Policy. As Lorenz testified, the Policy was a “union-
management” document negotiated and bargained for by and between the City and
its unions. Appellant’s Br. at 16 (citing Commission Hr’g, Notes of Testimony,
3/11/15, at 29). Because it was the result of negotiations and bargaining, Bundy
asserts, the Policy is a contract. Bundy maintains that, as the reviewing body
determining the applicability of the contract used to terminate him, the
Commission was required to follow established legal principles.
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Bundy asserts that while the City consistently misquoted the
applicable sections of the Policy, excluding from its recitation essential and precise
language that is harmful to its position, it has not at any point alleged the Policy is
ambiguous. Nor did any witness testify to any ambiguity. Further, Bundy
contends the City essentially conceded the Policy is unambiguous below. See Tr.
Ct. Hr’g, Notes of Testimony, 2/18/16, at 26-27. Bundy also maintains that neither
the Commission nor the trial court made any finding of ambiguity. As such,
Bundy asserts, the inquiry must be limited to the four corners of the Policy.
Bundy points out that Section C of the Policy states:
C. POST ACCIDENT DRUG AND ALCOHOL
SCREENING
1. A non-uniformed employee who is involved in an
accident as defined in Section III. A.1. while operating a
[City] motor vehicle or a personally owned vehicle
operated while conducting [City] business shall inform
his or her supervisor of the accident as soon as
practicable and shall remain readily available for drug
and alcohol testing, if required by the appointing
authority or designee. Failure to notify a supervisor of an
accident may result in discipline.
Supplemental Reproduced Record (S.R.R.) at 309b (emphasis added). In turn,
Section III.A.1. of the Policy provides:
III. DEFINITIONS:
A. For the purposes of this policy, the following
definitions shall apply:
1. The term ‘accident’ shall mean any occurrence
involving the operation of a motor vehicle, which results
in the loss of human life or bodily injury requiring
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[hospitalization] for medical treatment or observation, or
resulting property damage of more than $500.00. The
term shall also mean any occurrence involving the
operation of a motor vehicle that results in an employee’s
citation for [DUI]. Any such incident or accident must
occur while on duty.
2. ‘Operation of a Motor Vehicle’ shall mean the
operation of a City owned or leased vehicle or the
operation of a personal vehicle being used while
performing job duties.
S.R.R. at 304b-05b (emphasis added). Bundy notes that the Policy does not define
the term “on duty”; thus, that term must interpreted according to its plain meaning.
According to Merriam-Webster’s Online Dictionary, Bundy asserts, “on duty” is
defined as “working at a particular time.”2 According to the same source,
“working” is defined as “engaged in work especially for wages or a salary.”3 “Job”
is defined as “the work that a person does in order to earn money.” 4 And, “duty” is
defined as “something that is done as part of a job.”5 As such, Bundy argues, the
plain meaning of Section C of the Policy is that any non-uniformed employee
driving a City-owned vehicle who is involved in a fatal accident while engaged in
work shall inform his supervisor and shall remain available for drug testing, if
required.
2
Merriam-Webster’s Online Dictionary, Definition of duty (5), https://www.merriam-
webster.com/dictionary/on%20duty (last visited Feb. 14, 2017).
3
Merriam-Webster’s Online Dictionary, Definition of working (2),
https://www.merriam-webster.com/dictionary/working (last visited Feb. 14, 2017).
4
Merriam-Webster’s Online Dictionary, JOB Defined for English Language Learners,
https://www.merriam-webster.com/dictionary/job (last visited Feb. 14, 2017).
5
Merriam-Webster’s Online Dictionary, Duty Defined for English Language Learners,
https://www.merriam-webster.com/dictionary/duty (last visited Feb. 14, 2017).
16
Here, Bundy asserts, it is undisputed that he clocked out of work at
5:00 p.m. on the night of the accident. Commission Op. at 1. It is also undisputed
that he had “take home” privileges that allowed him to possess and use a City-
owned vehicle both during and after work hours. Id. at 4. Additionally, it is
undisputed that the accident occurred at approximately 8:10 p.m. Id. Further, it is
undisputed that at 8:10 p.m., Bundy was not being paid by the City, and he was not
performing any work duties, but rather was on his way home. Id. Thus, Bundy
contends, he was not on duty when the accident occurred. Because Section C of
the Policy is, by its express terms, only triggered if an accident occurs when an
employee is on duty, Bundy maintains, it was not triggered when he was involved
in an off-duty accident.
Notwithstanding this plain language, Bundy argues, the Commission
found that a strict reading of the Policy did not take into account its spirit and
intent. Thus, the Commission determined, it was reasonable to assume the City
intended to cover both employees during work hours, breaks and lunch, as well as
covering commuting times for employees with “take home” privileges. In so
finding, Bundy asserts, the Commission violated basic tenets of contract law. To
that end, he maintains, the Commission ignored the clear, unambiguous text of the
Policy.
Bundy also asserts, assuming for the sake of argument that this Court
finds the Policy is not a contract, but rather is more akin to a statute, the
Commission’s interpretation and application still constitutes reversible error.
Specifically, he contends, even if the policy is interpreted like a statute, the
17
Commission was still faced with unambiguous language; as such, it was required
to accept the express terms as a manifestation of the parties’ intent. As a result,
Bundy asserts, under a statutory construction analysis, the Commission’s creation
of a “spirit and intent” concept to nullify the terms of an unambiguous document
constitutes error.
In addition, Bundy argues, even if the relevant Policy provisions were
ambiguous, the Commission’s effort to create a “spirit and intent” exception to
reach its decision still constitutes reversible error as the term “on duty” is not
reasonably subject to more than one meaning.
Moreover, Bundy contends, even where a document is ambiguous,
ambiguities can only be resolved through the presentation of competent evidence.
Here, he argues, the only Streets Department employee who testified at the hearing
was Lorenz, and he made no mention of any ambiguity. Bundy also asserts Lorenz
did not testify to any alternative meaning of any Policy term.
2. Analysis
The issue before the Commission on an appeal of a dismissal is to
determine whether the City proved the charges against the employee and whether
those charges constitute just cause for discipline. Philadelphia Home Rule Charter
§7-303, 351 Pa. Code §7.7-303 (dismissal of civil service employee “shall be for
just cause only”); City of Phila. v. Civil Serv. Comm’n (Johnson), 967 A.2d 1034
(Pa. Cmwlth. 2009).
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Just cause is “largely a matter of discretion on the part of the head of
the department.” Davis v. Civil Serv. Comm’n of Phila., 820 A.2d 874, 878 (Pa.
Cmwlth. 2003). Just cause for dismissal must be related to the inefficiency,
delinquency or misconduct of the employee. Id. However, even a single instance
of misconduct or an error of judgment can constitute just cause for dismissal if it
adversely reflects on an employee’s fitness for his duties. Id.
Further,
[t]o be sufficient … the cause should be personal to the
employee and such as to render him unfit for the position
he occupies, thus making his dismissal justifiable and for
the good of the service.
… All the law requires is that the cause be not religious
or political, but concerned solely with the inefficiency,
delinquency or misconduct of the employe[e]. A wide
latitude must be left to the superior officer-in-fact a
discretion conditioned on its exercise in good faith and
not as a screen for some reason not based upon the fitness
of the employe[e] to fill the position.
Benvignati v. Civil Serv. Comm’n, 527 A.2d 1074, 1075 (Pa. Cmwlth. 1987).
In addition, as an appellate court, we cannot reweigh the evidence or
substitute our judgment regarding which witnesses to believe. Perry v. State Civil
Serv. Comm’n, 38 A.3d 942 (Pa. Cmwlth. 2011). Whether conduct constitutes just
cause for dismissal is an issue of law subject to this Court’s plenary review.
Johnson.
19
Here, the Streets Commissioner dismissed Bundy from his
employment as a Streets Repair Supervisor based on his refusal to submit to a drug
and alcohol test after a motor vehicle accident in which Bundy hit and killed a
pedestrian while operating a City-owned vehicle. S.R.R. at 329b. The
Commissioner also determined that Bundy’s disregard of his supervisor’s
instruction to submit to the drug and alcohol test constituted insubordination. Id.
Further, the Commissioner noted, because Bundy’s supervisor could not account
for the period between Bundy’s last email (at 5:40p.m.) and the accident (after 8:00
p.m.), Bundy engaged in the unauthorized use of his City-owned vehicle.
Ultimately, the Commission determined the Streets Department
proved just cause for Bundy’s dismissal from employment. In so doing, the
Commission explained, as relevant:
[W]e find that the [Policy] is applicable in this case
where a City employee with ‘take home privileges’ is
involved in an accident while returning home from work.
[Bundy] argues that the [Policy] does not apply [here]
because the accident did not occur while he was on duty.
The [Streets] Department, on the other hand, argues that
the Policy does apply because a strict interpretation of the
Policy would render it useless. We agree with the
[Streets] Department. A strict reading of the Policy
language fails to take into account the spirit and intent of
the Policy which is to create a safe working environment
for ‘City employees and all citizens.’ In order to protect
its citizens, the City must hold employees accountable
whenever they are driving City-owned vehicles.
Accordingly, it is reasonable to assume that the City
intended to cover both employees driving during working
hours, breaks and lunch, as well as covering commuting
times for employees with ‘take home privileges.’ …
20
Interestingly enough, we note that despite
[Bundy’s] argument, he nevertheless followed the Policy
rules on post-accident procedure by alerting his
supervisor immediately after the accident. This act
demonstrates that [Bundy] knew he had an obligation to
follow City policies while driving a City-owned vehicle
even though he was not working at the time of the
accident.
In finding that the [Policy] applies in this case,
after a review of the evidence presented, we must deny
the instant appeal for the following reasons. …
[T]he Commission finds that the testimony of [the
Streets] Department’s witnesses is more credible than the
testimony rendered by [Bundy]. Specifically, in regard
to the testimony of [Lorenz], we find that he ordered
[Bundy] to take a drug /alcohol test and allowed [Bundy]
to have the [p]olice perform the testing since it was part
of their [sic] investigation. Although, [Bundy] testified
that [Lorenz] never ordered him to take a drug/alcohol
screen, we find that assertion unbelievable. As a
supervisor, [Bundy] should be well aware of the [Streets]
Department’s policy allowing for drug and alcohol
testing following an accident in a City-owned vehicle. In
light of the tragic nature of the accident, we do not
believe [Lorenz] would fail to order a drug and alcohol
test as allowed for by the Policy.
Additionally, this Commission finds Officer
Tonkinson’s testimony particularly persuasive. [Bundy]
testified that he did not refuse the drug test at the PDU,
but that Officer Joyner advised him that he no longer
needed to take the test. However, Officer Tonkinson
credibly testified that he asked [Bundy] to volunteer for a
test because he did not have probable cause to require
[Bundy] to submit to testing. Furthermore, and most
importantly, Officer Tonkinson testified that he asked
[Bundy] to volunteer for a test because it is his unit’s
policy to seek drug and alcohol testing for all parties
involved in fatal accidents. Absent any evidence to the
contrary, we have no reason to believe that the Accident
Investigation Unit would suddenly abandon its accident
21
investigation procedures and decide not to test [Bundy].
Accordingly, this Commission believes that [Bundy] in
fact refused testing once he arrived at the PDU.
Based on the foregoing, we find that [Bundy’s]
refusal to submit to drug testing constitutes misconduct
and supports a finding of just cause for his dismissal.
Comm’n Op. at 6-7 (citation omitted).
For the reasons set forth below, we agree with the result reached by
the Commission, i.e., that the Streets Department proved just cause for Bundy’s
dismissal from employment. However, we do not base our determination on the
“spirit and intent” of the Policy. Rather, our review of the relevant Policy
provisions as a whole leads to a conclusion that the Policy applies here and that
Bundy violated the Policy. Moreover, the Commission’s supported determinations
reveal that Bundy was insubordinate in refusing to follow Lorenz’s direction that
he undergo a drug and alcohol test at police headquarters.
With regard to the applicability of the Policy to the facts presented
here, Section II of the Policy states, as pertinent:
The … use of prohibited substances or alcoholic
beverages is strictly prohibited while on City premises;
or during any work hours; or while driving City-owned
or -leased motor vehicles; or while driving personal
motor vehicles, owned or leased, while conducting City
business. This includes during lunch and break periods.
S.R.R. at 303b (emphasis added). Additionally, the testing “Consent Form”, which
is attached as Appendix II of the Policy states: “Refusal to cooperate in a drug or
alcohol test will result in a positive test result.” S.R.R. at 315b (emphasis in
22
original); see also S.R.R. at 39b (Lorenz testified: “It is the Streets Department
position that because the blood test was not done, it’s an admission of guilt ….”).
Further, Section V(C)(1) of the Policy (“POST-ACCIDENT DRUG
AND ALCOHOL SCREENING”) provides:
A non-uniformed employee who is involved in an
accident as defined in Section III.A.1. while operating a
[City] motor vehicle or a personally owned vehicle
operated while conducting [City] business shall inform
his or her supervisor of the accident as soon as
practicable and shall remain readily available for drug
and alcohol testing, if required by the appointing
authority or designee. …
S.R.R. at 309b (emphasis added).
In turn, Section III(A)(1) defines “accident” as:
any occurrence involving the operation of a motor
vehicle, which results in the loss of human life or bodily
injury requiring hospitalization for medical treatment or
observation, or resulting in property damage of more than
$500.00. The term shall also mean any occurrence
involving the operation of a motor vehicle that results in
an employee’s citation for [DUI]. Any such incident or
accident must occur while on duty.
S.R.R. at 304b. Also, the Policy defines “Operation of a Motor Vehicle” as “the
operation of a City owned or leased vehicle or the operation of a personal vehicle
being used while performing job duties.” S.R.R. at 305b (emphasis added).
23
Here, Bundy served as a Street Repair Supervisor in the Highway
Division of the Streets Department. S.R.R. at 249b. The Highway Division
maintains City streets and performs snow removal. S.R.R. at 250b.
As a Streets Repair Supervisor, Bundy had supervisory authority over
22 employees, and he was charged with ensuring that those employees followed
the Policy. S.R.R. at 244b, 251b, 265b. Bundy was also required to account for
and be responsible for the use of City property. S.R.R. at 255b-56b. Further, as a
supervisory-level employee, Bundy had “take home” privileges of his City-owned
vehicle. S.R.R. at 60b; 257b.
In April 2014, while operating his City-owned vehicle on his way
home after leaving the job site, Bundy struck and killed a pedestrian who was on
the shoulder of Interstate 76. S.R.R. 259b-263b. In his testimony before the
Commission, Bundy acknowledged that he was required to inform his supervisor
of the accident. R.R. at 266b. Further, the credited testimony reveals that after the
accident, Bundy’s supervisor, Lorenz, directed Bundy to submit to drug and
alcohol screening, and that Bundy refused. S.R.R. at 26b, 89b, 128b-29b, 156b.
Further, although Bundy argues he was not “on duty” when the accident occurred
because he already “clocked out,” Bundy construes the Policy too narrowly.
To that end, as set forth above, Section II of the Policy prohibits
employees from using prohibited substances or alcoholic beverages while driving
City-owned motor vehicles. Noticeably absent from this provision is any language
that requires that the employee be “on the clock;” to the contrary, the provision
24
explicitly contemplates that it applies during other “off the clock” periods, i.e.,
lunch and break periods. S.R.R. at 303b.
In addition, Section V(C)(1) of the Policy states that an employee
involved in an accident (as defined in Section III(A)(1)) while operating a City
vehicle shall, among other things, remain available for drug and alcohol testing, if
required. Section III(A)(1) defines an accident, in pertinent part as, any occurrence
involving the operation of a vehicle that results in the loss of human life. It also
states: “Any such … accident must occur while on duty.” S.R.R. at 304b. The
term “on duty” is not defined in the Policy.
Nevertheless, the dictionary broadly defines the term “on duty” as
“engaged in or responsible for an assigned duty or task.” MERRIAM-WEBSTER’S
COLLEGIATE DICTIONARY 360 (10th ed. 2001); see also WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 705 (2002) (defining “on duty” as “assigned to a task
or duty; engaged in or responsible for some specific performance”). Here, as an
employee with “take home” privileges, Bundy was responsible for the assigned
duty of safely operating his City-owned motor vehicle to and from his work site.
Indeed, before the Commission, Lorenz credibly explained: “[Bundy] has take-
home privileges. Therefore the responsibility of that vehicle to get to and from the
job site is his.” S.R.R. at 60b. As such, no error is apparent in the Commission’s
ultimate determination that the Policy applied to the facts presented here.
This conclusion is supported by our review of the Policy as a whole.
More particularly, our review of the Policy in its entirety reveals that, with regard
25
to the operation of a motor vehicle, the phrase “while conducting [City] business”
is only used in connection with references to an employee’s use of his personally-
owned vehicle. Thus, an employee who is operating a City-owned vehicle is
considered to be conducting City business and subject to the Policy’s drug and
alcohol screening requirements in the event of an accident. Indeed, Section II of
the Policy “strictly prohibits” the use of alcoholic beverages or prohibited
substances while driving City-owned vehicles regardless of whether an employee
is conducting City business while operating the City-owned vehicle. S.R.R. at
303b.
Consequently, no error is apparent in the Commission’s determination
that the Policy, which required Bundy to submit to a drug or alcohol test after an
accident that resulted in a fatality when directed to do so by his supervisor, applied
here and was violated. In turn, no error is apparent in the Commission’s
determination that Bundy’s violation of the Policy constituted just cause for his
dismissal from employment. See, e.g., Davis (single instance of misconduct or
error of judgment can constitute just cause for dismissal if it adversely reflects on a
person’s fitness for his duties); see also Perry (affirming removal of manager for
violating policy prohibiting possession of weapons in workplace). Additionally,
because the credited evidence reveals Bundy refused to follow his supervisor’s
directive that he submit to drug and alcohol testing after the accident, Bundy’s
conduct constituted insubordination,6 which also establishes just cause for his
dismissal. See, e.g., Gonzales v. Dep’t of Public Welfare, 408 A.2d 893 (Pa.
6
Insubordination denotes either disobedience or defiance or contempt of authority and is
simply an unwillingness to submit oneself to the authority of organizational superiors. McCain
v. Dep’t of Educ., E. Stroudsburg State Coll., 454 A.2d 667 (Pa. Cmwlth. 1983).
26
Cmwlth. 1979) (failure to follow a supervisor’s instructions is an example of
behavior that goes to the merits and is just cause for dismissal; thus, just cause
existed to remove employee who refused to leave employer’s premises after being
instructed to do so).
B. Standards for Off-Duty Conduct
1. Contentions
Bundy next asserts the Commission erred when it found that just
cause existed to terminate him despite the City’s failure to present evidence
establishing a standard of conduct by which to measure the off-duty conduct of
Streets Department employees.
Bundy contends the central question underlying this case is whether or
not he was subject to the Policy when he was involved in the accident such that his
failure to participate in a voluntary blood test was a basis for termination. Because
Bundy was not employed in a safety sensitive position, he argues, his off-duty
conduct could only result in termination if there was a written work rule creating a
standard of conduct applicable to his off-duty conduct or if the conduct related
directly to a function of his job, thus rendering him no longer qualified. As there is
no evidence of either, he asserts, the Commission’s finding of just cause is
erroneous.
To that end, Bundy maintains, determining whether an agency carried
its burden of proof and production regarding just cause for termination is a two-
part inquiry. First, the agency must present evidence establishing the factual truth
of its allegations. Second, the agency must show the proven allegations touched on
27
the employee’s fitness for employment such that dismissal is warranted. Soergel v.
Bd. of Supervisors of Middlesex Twp., 316 A.2d 89 (Pa. Cmwlth. 1974).
Bundy acknowledges that employees in “highly sensitive” positions
are generally subject to stricter, more stringent standards of conduct because of the
need to avoid an appearance of impropriety. Johnson, 967 A.2d at 1039 (internal
citation omitted). As such, they can routinely be removed as a result of both on-
and off-duty conduct, even where there is no rule that explicitly proscribes the
conduct in which they engaged. See e.g. Stone v. State Corr. Inst. at Graterford,
422 A.2d 1227 (Pa. Cmwlth. 1980). Similarly, Bundy asserts, individuals who
function in law enforcement or investigative capacities can also be subject to
removal after off-duty misconduct if the conduct shows a lack of judgment that
erodes confidence in the character required to perform their duties. See, e.g.,
Johnson.
Bundy maintains that civil service employees that do not serve in
highly sensitive positions or positions involving investigatory functions can
generally be subject to discipline for off-duty misconduct if the agency shows the
off-duty conduct directly relates to the employee’s ability to execute his job duties,
even in the absence of a written work rule. See, e.g., Walsh v. State Civil Serv.
Comm’n (Dep’t of Transp.), 959 A.2d 485 (Pa. Cmwlth. 2008) (just cause existed
to terminate supervisor who inappropriately accessed confidential information of
his ex-wife’s paramour when he was a high-ranking employee responsible for both
safekeeping records and ensuring other employees did not violate agency policy).
Bundy contends that, although there was a written work rule in Walsh, this Court
28
focused on the relatedness of the conduct to the employee’s job duties. Id.; accord
City of Phila. v. Civil Serv. Comm’n (Gibbs), (Pa. Cmwlth., No. 2531 C.D. 2009,
filed December 22, 2011) 2011 WL 10877954 (unreported) (finding just cause to
terminate employee who admitted to submitting false timesheets at his part-time
job when, as a civil servant, he was responsible for conducting investigations,
collecting samples and testifying to their chain of custody and his honesty and
integrity were integral to his job); see also Tech v. Wattsburg Area Sch. Dist. Bd.
of Educ., 373 A.2d 1165 (Pa. Cmwlth. 1977) (finding just cause to terminate bus
driver after two off-duty accidents, despite her clean “on-duty” record, when
accidents were her fault and created doubt as to her ability to safely drive a school
bus).
Bundy maintains that, absent evidence that the off-duty conduct
directly relates to an employee’s job duties such that it makes him unfit for
continued employment, a civil servant in a non-safety sensitive position can only
be terminated based on off-duty conduct if the alleged conduct is proscribed by
written work rule. In support, Bundy relies primarily on Philadelphia Civil Service
Commission v. Owens, 556 A.2d 967 (Pa. Cmwlth. 1989). Bundy asserts the facts
underlying his termination are strikingly similar to those in Owens. Here, he
argues, his off-duty conduct was used as the basis for his termination. As such, the
City appropriately cited to a policy, which it asserts is the applicable written work
rule. Bundy contends the Commission’s duty was to examine the Policy and
determine whether his off-duty conduct violated it. Because the plain language of
the Policy expressly excludes accidents that occur while an employee is off-duty,
Bundy argues, the Policy is not a written work rule proscribing his off-duty
29
conduct. As such, it cannot form the basis for his termination because the rule only
applies to on-duty accidents.
Bundy contends the stated reason for his removal was “refusal to be
tested is an admission of being under the influence of a controlled substance and
therefore, violates the [Policy].” Br. of Appellant at 30. Integral to determining
whether the City proved this charge is establishing that Bundy was required to be
tested. In presenting no evidence establishing that Bundy violated any policy, he
argues, here, as in Owens, there is no standard of conduct to apply to his off-duty
conduct and, as such, no evidence on which the Commission’s finding of just cause
can stand.
2. Analysis
Based on our determination that the Commission properly determined
the Streets Department proved just cause for Bundy’s dismissal from employment
based on Bundy’s violation of the Policy (as well as his insubordination in refusing
his supervisor’s direction to submit to a drug and alcohol test), this argument fails.
In any event, Owens, the primary case relied on by Bundy, is
distinguishable. There, we held that just cause did not exist to terminate the
employment of a civilian tow truck operator for the Philadelphia Police
Department where there was no dispute that the misconduct occurred while the
employee was off-duty, and the Philadelphia Police Department did not present
any evidence that its standard of conduct for the off-duty conduct of police officers
extended to civilian personnel.
30
As set forth above, here, unlike in Owens, the Streets Department
established the existence of the Policy, its applicability to Bundy, a supervisory-
level City employee who was operating a City-owned vehicle, and the fact that
Bundy violated the Policy (and was insubordinate) by refusing his supervisor’s
direction to submit to a drug and alcohol test. Thus, Owens does not compel the
result Bundy seeks.
Moreover, in City of Philadelphia v. City of Philadelphia Civil
Service Commission (Carter), 895 A.2d 87, 92-93 (Pa. Cmwlth. 2006), we
explained:
In deciding whether a public employer has
established just cause for dismissing a civil service
employee, this Court has identified a number of factors
relevant to this determination. First, the nature of the job
is an important consideration; an employee in a ‘sensitive
position’ may be subject to dismissal if only to avoid the
appearance of impropriety whereas an employee in a
non-sensitive position may not. [Stone] (holding that a
corrections officer was in a ‘highly sensitive’ position).
A second relevant factor is whether the conduct in
question demonstrates a lack of judgment that erodes
confidence in an employee’s character. Commonwealth,
Office of Attorney General v. Colbert, 598 A.2d 344 (Pa.
Cmwlth. 1991) (holding that dismissal for arrest on 40
unpaid parking tickets constituted just cause). A third
factor concerns safety. An employee whose job it is to
protect the safety of others is expected to behave in a
manner consistent with this goal even while off duty.
Doerr v. Pennsylvania Liquor Control Board, 491 A.2d
299, 303 (Pa. Cmwlth. 1985) (loss of service revolver by
Liquor Control Board officer in the course of off-duty
altercation constituted just cause for dismissal). …
31
Here, these factors weigh in favor of the conclusion that the Streets
Department had just cause to dismiss Bundy. As explained above, Bundy was a
supervisor charged with responsibility for 22 employees as well as City vehicles
and property. He was also charged with ensuring employees complied with the
Policy. Bundy’s refusal to submit to drug and alcohol testing after his involvement
in a fatal accident while operating a City-owned motor vehicle and his disregard of
his supervisor’s directive that he undergo such testing showed poor judgment that
eroded the Streets Department’s confidence in Bundy. Additionally, Bundy’s
violation of the Policy obviously raised concerns over his ability to safely utilize
City property and properly supervise employees.
C. Nexus
1. Contentions
As a final issue, Bundy argues the Commission and the trial court
erred by upholding his termination where no evidence was presented of a nexus
between Bundy’s ability to perform his job and his failure to submit to a voluntary
drug test after an off-duty accident.
Bundy asserts that in Civil Service Commission v. Poles, 573 A.2d
1169 (Pa. Cmwlth. 1990), a corrections officer was terminated because he
inefficiently performed his assigned duties. In reversing the trial court and
reinstating the Commission’s decision, this Court found substantial evidence
supported a finding of just cause. Specifically, the evidence established: the
corrections officer was assigned to guard high-risk inmates; the facility had
procedures to minimize the risk of inmate escape; the corrections officer did not
follow these procedures; and, his failure to do so led to a fight between officers and
32
inmates as well as the escape of two inmates. As this Court requires, the evidence
there established the misconduct as well as a correlation between the misconduct
and the employee’s professional competency. This Court explained that the
severity of the officer’s negligence cast doubt on his continued service.
Conversely, Bundy asserts, in Owens, this Court engaged in this same
analysis, but found substantial evidence did not support a finding of just cause.
Bundy further argues that in Woods v. State Civil Service Commission, 912 A.2d
803 (Pa. 2006), the Pennsylvania Supreme Court reiterated the well-established
rule requiring a nexus between conduct and ability after engaging in a similar
analysis.
Bundy maintains the requisite connection between the alleged
misconduct and fitness for continued employment is even more attenuated here
than in Owens and Woods. He argues the City bore the burden to present evidence
establishing he was unfit for continued employment because his conduct affected
his job performance. He contends that connection was not made. Bundy asserts
that there was one witness who might have been able to make this connection,
Lorenz. Although he spent a significant amount of time recounting the night of the
accident, Bundy argues, Lorenz did not speak at all to Bundy’s job responsibilities
or how his conduct was remotely related to or affected his ability to perform his
job. He also made no mention of any impact Bundy’s conduct had on the Streets
Department or the City. To the contrary, Lorenz testified Bundy was “a good
worker . . . [and] made the best effort to do the job the best he could.” N.T. at 212.
Bundy contends that, as this Court consistently holds, just cause for dismissal must
33
be job-related and rationally touch on ability and competency. Here, he asserts
there is no evidence that the cause of his dismissal was either job-related or
rationally touched on his ability and competency.
2. Analysis
Again, we reject Bundy’s argument. As stated above, the Streets
Department established the existence of the Policy, its applicability to Bundy, a
supervisory-level City employee who was operating a City-owned vehicle, and that
Bundy violated the Policy (and was insubordinate) when he refused his
supervisor’s direction to submit to a drug and alcohol test after an accident in
which he struck and killed a pedestrian. Thus, the Commission properly
determined the Streets Department proved just cause for Bundy’s dismissal from
employment.
Further, as explained above, Owens, relied on by Bundy, is
distinguishable. Similarly, Woods, also relied on by Bundy, is distinguishable.
There, the Supreme Court held that the public employer, a juvenile detention
center, did not prove just cause to terminate one of its counselors, based solely on
the counselor’s off-duty arrest for perjury and false swearing, which were
unrelated to his employment, and upon which the employee was not convicted at
the time of his dismissal. In so doing, the Supreme Court stated:
While [the employee’s] arrest may have warranted
suspension, we disagree that his arrest alone, on perjury
and false swearing charges, established just cause for
removal. [The employee’s] arrest alone did not rationally
and logically touch upon his competency and ability to
perform his job as to warrant dismissal … and therefore
did not provide just cause for removal. While the
34
[c]enter observes that [the employee] occupied a position
requiring trust and integrity, his arrest alone, albeit on
crimen falsi charges, failed to demonstrate that his
trustworthiness or integrity had been compromised. The
[employer] raises concerns about the damage to the
reputation and credibility of the institution occasioned by
[the employee’s] arrest. However, just cause for removal
must be related to the employee’s competency and ability
to perform his job, or arise from conduct rendering him
unfit for the position he occupies. Injury to the
reputation of the institution does not meet these criteria.
On the same grounds, we decline to adopt a per se rule
that the ‘appearance of impropriety’ by an employee in
[a] ‘highly sensitive [position]’ provides just cause to
warrant dismissal.
Woods, 912 A.2d at 809.
Here, unlike in Woods, we are not confronted with an employee’s off-
duty arrest (prior to conviction) as the asserted basis for dismissal. Rather, in this
case, the Streets Department established the existence of the Policy, its
applicability to Bundy, a supervisor who was operating a City-owned vehicle, and
Bundy’s violation of the Policy (and insubordination) based on his disregard of his
supervisor’s directive that he submit to a drug and alcohol test after an accident
that resulted in a fatality. As explained above, Bundy’s refusal to submit to testing
after his involvement in a fatal accident while operating a City-owned motor
vehicle and his disregard of his supervisor’s directive that he undergo such testing
showed poor judgment.
In addition, Bundy’s violation of the Policy clearly raised concerns
over his ability to safely utilize City vehicles and property and to appropriately
supervise employees in light of the fact that he violated the Policy, which he was
35
charged with enforcing in his capacity as a supervisor. Thus, Bundy’s misconduct
rationally and logically touches upon his competency and ability to properly
perform his job. In other words, a nexus exists between Bundy’s misconduct and
his ability to execute his job duties. As such, we discern no error in the
Commission’s determination that just cause existed for Bundy’s dismissal from
employment based on the facts presented here.
For all the foregoing reasons, we affirm.
ROBERT SIMPSON, Judge
36
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Gregory Bundy, :
Appellant :
:
v. : No. 436 C.D. 2016
:
City of Philadelphia Civil :
Service Commission, :
ORDER
AND NOW, this 9th day of March, 2017, the order of the Court of
Common Pleas of Philadelphia County is AFFIRMED.
ROBERT SIMPSON, Judge