Section 105.15. Procedure under section 951(a) of the act (71 P. S. § 741.951(a))

(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.

(b) If, after due notice, the appellant fails to appear at the scheduled hearing, the appointing authority has no burden to go forward and the appeal may be dismissed without the presentation of evidence.

(c) While in each case the Commission may adapt the procedures and conduct of the hearing in accordance with the requirements of justice and due process, generally the routine shall follow the following order:

(1) The presiding commissioner shall open the hearing and shall enter as exhibits a copy of the letter initiating the action taken by the appointing authority, the written appeal of the appellant from the action, and evidence of proper notification to all parties in interest.

(2) The parties shall, subsequent to the presiding commissioner’s introduction of documents, present any preliminary motions.

(3) The appointing authority shall call witnesses to testify after being sworn by the presiding commissioner.

(4) The appointing authority may, through witnesses or by stipulation, offer any other relevant evidence for introduction into the record.

(5) The appointing authority shall cite all relevant provisions of law and all relevant rules and regulations.

(6) The appellant may object to questions directed to the witnesses and to the introduction of any evidence offered.

(7) The appellant shall be allowed reasonable opportunity to cross-examine the witnesses.

(8) At the conclusion of the appointing authority’s case, the appellant may move to dismiss on the ground that no prima facie case has been established.

(9) If no motion to dismiss is made, if the motion is denied, or if the Commission defers ruling on the motion, the appellant may present the defense by the testimony of witnesses, the introduction of relevant evidence, and the citation of relevant provisions of law, rules or regulations.

(10) The appointing authority may object to questions directed to the witnesses and to the introduction of any evidence offered.

(11) The appointing authority shall be allowed reasonable opportunity to cross-examine the witnesses.

(12) When all the evidence has been introduced, the Commission may hear oral argument.

(13) The transcript of the record will be prepared as soon as practicable after the hearing. A copy of the transcript shall be available at the Commission’s Harrisburg office for inspection, or upon request, at one of the other Commission offices.

(14) The parties may submit briefs within a period of time fixed by the Commission. Failure by either party to file its brief within the fixed time may lead to the refusal of the Commission to consider the brief in making its determination.

(15) The record shall be considered as closed upon receipt of transcripts, depositions and briefs and the hearing shall be deemed concluded at that time. The Commission will determine the facts upon the evidence of record and decide relevant questions of law within 90 calendar days after the conclusion of the hearing.

(16) A copy of the adjudication in writing, containing findings and reasons, as a result of a resolution adopted by a quorum at a meeting of the Commission, shall be prepared as a decision of the Commission, and, when signed by one of the members of the Commission under its seal, shall be final. A copy of adjudication shall be sent to the appellant and to the appointing authority.

The provisions of this § 105.15 adopted October 18, 1961; amended October 15, 1964 and April 16, 1970; amended March 29, 1985, effective March 30, 1985, 15 Pa.B. 1151; amended November 15, 1991, effective November 16, 1991, 21 Pa.B. 5334. Immediately preceding text appears at serial pages (142737) to (142740).

Notation

Notes of Decisions

The civil service employe was properly furloughed by the Department of Public Welfare (Department) as according to the county furlough unit set up by Department of which only two people had the same job title and the furloughed employe’s performance evaluation review which was then ‘‘due’’ was the lower evaluation of the two. Valence v. Department of Public Welfare, 641 A.2d 644 (Pa. Cmwlth. 1994).

The Department of Environmental Resources proved that the furlough of a Civil Service employe was justified by showing that the furlough resulted from a lack of work as the employe’s main duty no longer existed. A noncivil service employe assumed only some of the employe’s duties, and that change was part of a reorganizational streamlining by the Department to achieve greater efficiency. Haskins v. Department of Environmental Resources, 636 A.2d 1228 (Pa. Cmwlth. 1994).

Where a corrections officer challenged his demotion which was based on alleged unsatisfactory performance under the Civil Service Act (71 P. S. § § 741.1—741.1005), the appointing authority of the State Correctional Institute at Muncy proved that the officer did not satisfactorily perform the duties of the position to which he was appointed by showing that the officer misused his authority, performed an inadequate investigation which constituted a negligent discharge of his duties and treated his superiors with disrespect. Bennett v. State Correctional Institution at Muncy, 637 A.2d 753 (Pa. Cmwlth. 1994).

A furlough, which was actually implemented prior to the date of approval for reorganization, entitled appellant to reimbursement of wages and emoluments for the period, but did not entitle him to have the furlough procedure declared void ab initio. Pronko v. Department of Revenue, 539 A.2d 456 (Pa. Cmwlth. 1988).

It is not necessary to prove intent in cases brought under section 951(b) of the Civil Service Act (71 P. S. § 741.951(b)) where a technical violation of the act constitutes the alleged discrimination. Pronko v. Department of Revenue, 539 A.2d 456 (Pa. Cmwlth. 1988).

Where a regular status employe appeals a furlough, alleging what is in essence a statutory violation of section 802 of the Civil Service Act (71 P. S. § 741.802) and where the employe is harmed or it is impossible to determine whether he could have been harmed, the violation is best analyzed under section 951(a) of the Civil Service Act (71 P. S. § 951(a)). Pronko v. Department of Revenue, 539 A.2d 456 (Pa. Cmwlth. 1988).

In appeals under section 951(a) of the Civil Service Act (71 P. S. § 741.951) the burden is on the appointing authority to set forth a prima facie case demonstrating compliance with the act, as opposed to section 951(b) which places the burden on the complaining individual. Pronko v. Department of Revenue, 539 A.2d 456 (Pa. Cmwlth. 1988).

A furlough of a State civil servant may only be validly implemented on the basis of a lack of work or a lack of funds and when the furlough is of a regular status employe, the Appointing Authority bears the burden of demonstrating the lack of work or lack of funds. Dougherty v. Department of Health, 538 A.2d 91 (Pa. Cmwlth. 1988).

The Commission must set forth its findings and reasons in an adjudication in order to conform with this section and the omission of findings and reasons is a denial of due process. Henderson v. Office of Budget, 537 A.2d 85 (Pa. Cmwlth. 1988); appeal denied 574 A.2d 73 (Pa. 1990).

The Commission is empowered to make a credibility determination regarding an appointing authority’s evidence of lack of work to support a furlough and may refuse to weigh evidence if it determines that no prima facie case exists. Pennsylvania Public Utility Commission v. Taylor, 537 A.2d 45 (Pa. Cmwlth. 1988).

Appointing authority bears the burden of establishing a prima facie case to support an action for dismissal of a civil service employe for just cause, after which the employe may present his case in rebuttal. Where an employe has failed to disclose his financial interests, as required by State Ethics Act and Governor’s Code of Conduct, and instructions for disclosure are unambiguously provided on Code of Conduct form, prima facie case has been established. Department of Community Affairs v. Colston, 521 A.2d 509 (Pa. Cmwlth. 1987); appeal denied 561 A.2d 743 (Pa. 1989).

Even though this section states that the Commission shall rule promptly on an oral motion to dismiss for failure to state a prima facie case, a ruling was properly deferred when only one of the three appointed Commissioners was present at the time the motion was made. Turzai v. Liquor Control Board, 495 A.2d 639 (Pa. Cmwlth. 1985); cert. denied 107 S. Ct. 315 (U. S. 1986).

Where county presented only general statements about the county’s prior-year deficit and testimony showing policy decision to limit personnel costs, the county failed to meet its burden of proof to present a prima facie case in establishing a lack of funds. Beaver County Children and Youth Services v. Funk, 492 A.2d 118 (Pa. Cmwlth. 1985).

When there has been called into question the validity of furlough, the appointing authority has the burden of going forward with proofs to establish a prima facie case justifying the furlough, viz. that the furlough resulted from a lack of funds or a lack of work. Department of State v. Stecher, 484 A.2d 755 (Pa. Cmwlth. 1984); 459 A.2d 851 (Pa. Cmwlth. 1983).

This section places the burden on the appointing authority to establish a prima facie case justifying employes’ furloughs. Pavia v. Department of Transportation, 466 A.2d 735 (Pa. Cmwlth. 1983).

The Insurance Department had the burden to go forward with evidence to show that a furlough was not in violation of the Civil Service Act, as charged under 71 P. S. § 951(a). Insurance Department v. Tracz, 466 A.2d 269 (Pa. Cmwlth. 1983).

In upholding a dismissal of a Health Department official for just cause, the Court noted that this section imposes a burden on the employing authority to establish a prima facie case to support its action with the burden of production then shifting to the employe to present his case to rebut the employer’s case. Hoffman v. Department of Health, 458 A.2d 303 (Pa. Cmwlth. 1983).

When someone other than the final decision maker conducts a hearing, due process is not breached as long as the decision maker appraises and considers the evidence prior to reaching a determination. Kakas v. Department of Public Welfare, 442 A.2d 1243 (Pa. Cmwlth. 1982).

The appointing authority has the duty to go forward in the establishment of the charges upon which its personnel action is based and in so doing establish a prima facie case in justification of that action, and if the party with the burden of proof prevails in a Commission hearing, the reviewing court is limited to a determination of whether constitutional rights were violated, an error of law was committed, or a necessary finding of fact was unsupported by substantial evidence. Laws v. Philadelphia County Board of Assistance, 412 A.2d 1377 (Pa. Cmwlth. 1980).

The Commission should be particularly astute to exclude hearsay evidence where the State is attempting to remove a veteran employe from a well-paid position of great responsibility requiring difficult decisions on sensitive public matters. Bleilevens v. Civil Service Commission, 312 A.2d 109 (Pa. Cmwlth. 1973).

Burden of Proof

The Commonwealth Court properly allocated the burden to the city employe to demonstrate that her termination was not for economic reasons, where the city had presented substantial evidence that the city employe’s dismissal had been based on economic considerations. Sadowski v. City of Pittsburgh, 741 A.2d 180 (Pa. 1999).

Cross References

This section cited in 4 Pa. Code § 105.16 (relating to procedure under section 951(b) of the act (71 P. S. § 741.951(b)).