Turzai v. Commonwealth

Opinion by Judge Doyle, This is an appeal by Richard Turzai (Appellant) from an adjudication and order of the State Civil Service Commission (Commission) sustaining his removal from the position of Enforcement Officer H, regular ■status, by the Pennsylvania Liquor Control Board (Appointing Authority). The Commission found that Appellant disclosed to Robert J. Sabo, the owner of Sabo’s Cafe (Cafe), and — 376 — to a barmaid employed there, that an investigation of the Cafe was being conducted by the Appointing Authority. The Commission further found that Appointing Authority policy prohibits the disclosure of confidential information and the revelation of complaints or complainants to unauthorized persons. Accordingly, it determined that just cause existed for the removal of Appellant pursuant to Section 807 of the Civil Service Act (Act).1 Our scope of review of a Commission order is limited to determining whether there has been a constitutional violation or an error of law and whether findings of fact are ¡supported by substantial evidence on the record. Mufson v. Department of Public Welfare, 72 Pa. Commonwealth Ct. 404, 456 A.2d 736 (1983). Appellant has raised numerous challenges to the Commission decision and we .shall examine his contentions seriatim. First, Appellant maintains that the charges appearing in his removal letter were not sufficiently specific to afford him due process as mandated by Section 950 of the Act, 71 P.S. §741.950.2 The removal letter stated in pertinent part that Appellant was being charged with “[¡cjonduot unbecoming an Enforcement Officer by virtue of your violations of the Manual of Instructions, Chapter 641-75 and Handbooh for Enforcement Officers during or about the week of April 11, 1983 in Sabo’s Cafe (R-7813).” The letter further stated that the charges were (1) improper conduct while on or off duty (2) disclosing confidential information to unauthorized persons and (3) revealing complaints or complainants to unauthorized persons. The Commission, noting that the letter mentioned an approximate date and — 377 — place, and included citations to the Appointing Authority manual and handbook, as well as statements of the policies allegedly violated, determined that it met the due process criteria for a personnel action letter as enunciated by this Court in Wood v. Department of Public Welfare, 49 Pa. Commonwealth Ct. 383, 411 A.2d 281 (1980). We agree. Appellant cites Chavis v. Philadelphia County Board of Assistance, 29 Pa. Commonwealth Ct. 205, 370 A.2d 445 (1977), in which a notice relating to falsification of documents was found to be constitutionally infirm. But the letter in Chavis contained broad general allegations such as “concealment of a material fact by omission”, “gross negligence”, “neglect of duty”, and “failure to comply with instructions. ’ ’ In the instant case the charges as stated contain considerably more information than in Chavis and thus comprise a notice which would allow the employee to comprehend the nature of the charges and adequately prepare a defense. Wood. We therefore reject Appellant’s assertion that his notice was inadequate. Appellant next contends that the Appointing Authority’s prima facie case is fatally defective because the Appointing Authority did not enter into evidence the report pertaining to the substantive investigation of the Cafe and did not present proof that Appellant had access to or knowledge of the contents and date of that report. Appellant misses the point. The only issues before the Commission were whether there was an ongoing investigation of the Cafe and whether Appellant disclosed this fact. Examination of the personnel action letter clearly indicates that it is mere disclosure of the investigation which forms the basis of the charges upon which the removal is premised. The investigator himself testified that such an investigation was, in fact, in progress. The bar owner and — 378 — barmaid testified that Appellant told them of the investigation. The Commission found this testimony credible. Thus, substantial evidence existed for the Commission’s determination and any matters contained in the report were mere surplusage unnecessary to establish just cause for removal. Appellant next contends that because Sabo testified that the tip-off occurred in May (rather than in April as the removal letter stated) the Appointing Authority failed to establish a prime facie case. Although the Appointing Authority did not present evidence that the infraction occurred in April, it did establish that Appellant revealed confidential information in the Cafe by revealing to Sabo and the barmaid that the Appointing Authority was investigating that establishment. Thus, the fact that Sabo could not recall the exact date of the incident is de minimis in light of the totality of his testimony. Sufficient facts as alleged in the removal letter were proved to establish just cause based upon the stated charges. Appellant argues next that the 'Commission denied him due process in that it refused to admit into evidence an Appointing Authority report which report revealed that Appellant’s name had been suggested to Sabo as the tipster by the Appointing Authority employee conducting an investigation into the leak of the confidential information.3 We do not agree with Appellant that due process was denied by the Commission’s refusal to admit the report. The Commission, although it did refuse to admit the actual re — 379 — port, and, in fact, found it to be cumulative evidence,4 did permit the report to be used for purposes of cross-examination. Exclusion of cumulative evidence is not error. Rabenstein v. State Workmen's Insurance Fund, 15 Pa. Commonwealth. Ct. 160, 325 A.2d 681 (1974). Additionally, we decline to accept Appellant’s suggestion which is, in essence, that the constitutional standards pertaining to witness identification of criminal suspects be applied to a Commission hearing. Commission proceedings clearly are not criminal in nature and we have rejected application of other criminal standards to Commission hearings in the past. See, e.g., Hughes v. State Civil Service Commission, 17 Pa. Commonwealth Ct. 344, 331 A.2d 590 (1975) (Appointing Authority need not justify suspension or removal on a charge of theft of State property by proof beyond a reasonable doubt). Appellant’s next point of error is that the Commission failed to properly rule on his oral motion to dismiss for failure to establish a prima facie case. This motion was made at hearing and ruling was deferred. Commission Regulation 105.15(b)7, 4 Pa. Code §105.15 (b) 7, states that the Commission shall promptly rule on such motion. However, only one Commissioner, of three appointed,5 was present at hearing. Implicit in the creation of the three member panel is the requirement that the substantive issue (in this case whether just cause existed) be decided by the Commission as a body. Where a majority of the — 380 — Commission was not present to determine whether a prima facie case had been presented, the single member present was without power to express the view of the Commission as to whether a prima facie case had been established. Accordingly, the deferral on the motion was not only proper, but required.6 Although no express ruling was ever made on this motion to dismiss in the Commission’s adjudication it was denied by implication and, thus, the Commission acted properly in considering all the evidence of record in reaching its decision. Finally, Appellant maintains that several of the Commission’s findings are not ¡supported by substantial evidence. Our review of the record discloses that the findings are adequately supported. Based on the foregoing the decision of the Commission is affirmed. Order Now, July 12, 1985, the Adjudication and Order of the State Civil Service Commission, Appeal No. 4693, dated February 23, 1984, is hereby affirmed. Footnotes [1] Act of August 5, 1941, P.L. 752, as amended, 71 P.S. §741.807. [2] Section 950 was added by Section 27 of tbe Act of August 27, 1963; P.L. 1257. [3] A careful review of the record reveals that Appellant’s last name was suggested to Sabo only after Sabo mentioned Appellant’s first name and indicated where Appellant lived. Sabo explained that he simply did not know Appellant’s last name. We note that the Commission found Sabo’s identification of Appellant at the hearing to be credible. [4] Sabo admitted that Appellant’s name had been suggested to him. See note 3 supra. Additionally, Commission Chairman Mary D. Barnes stated that such internal agency reports are usually regarded as confidential. [5] Section 452 of The Administrative Code 1929, Act of April 9, 1929, P.L. 177, as amended, 71 P.S. §162, creates the Commission and specifies that it “shall consist of three members.” [6] We do not hold that a single Commissioner is without power to rule on evidentiary questions and, indeed, Fleming v. State Civil Service Commission, 13 Pa. Commonwealth Ct. 421, 319 A.2d 185 (1974) and Siegel v. State Civil Service Commission, 9 Pa. Commonwealth Ct. 256, 305 A.2d 736 (1973), which hold that only a single Commissioner need actually be present at a hearing, impliedly permit a single Commissioner to make such evidentiary rulings.