J. E. McCrory v. The Municipality of Penn Hills, et al. (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Jack E. McCrory, Appellant v. The Municipality of Penn Hills, Pennsylvania and The Personnel Board of the Municipality of Penn Hills, Pennsylvania BEFORE: : : : : : : : : : No. 1241 C.D. 2007 Submitted: February 11, 2008 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SIMPSON FILED: March 10, 2008 Jack E. McCrory, former Assistant Chief of Police (Assistant Chief) for the Municipality of Penn Hills (Municipality), appeals an order of the Court of Common Pleas of Allegheny County (common pleas court) that sustained a decision of the Municipality s Personnel Board (Board) upholding McCrory s termination. The Municipality terminated Assistant Chief after deciding not to fund the Assistant Chief position in its 2005 budget. The Board determined the Municipality acted in good faith and eliminated the position for economic reasons. In this local civil service appeal, we review the Board s decision.1 1 Our review of a municipal civil service commission decision is limited. Davis v. Civil Serv. Comm n of the City of Phila., 820 A.2d 874 (Pa. Cmwlth. 2003). 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 violates constitutional rights, is not in accordance with the law, it violates the procedural provisions of the local agency law, or the commission s findings are not supported by substantial evidence. Id. (citing 2 Pa. C.S. §754; Tegzes v. Twp. of Bristol, 504 Pa. 304, 472 A.2d 1386 (1984)). The Board found the following facts. The Municipality first hired Assistant Chief as a patrol officer in 1973. In 1991, the Municipality promoted Assistant Chief to a lieutenant. In 2002, the Municipality, by ordinance, eliminated the Captain position and created the Assistant Police Chief position. Assistant Chief applied for the position. He passed oral and written examinations. In December 2002, the Board appointed Assistant Chief to the position. The last working day before his appointment became effective, Assistant Chief retired from the police bargaining unit; his last day as a lieutenant was November 29. He cashed out his accrued benefits, which included vacation time, sick time and comp time. Assistant Chief also became eligible for and began receiving an annual pension of $68,000. When hired on December 2, 2002, Assistant Chief earned a base salary of $68,500.54. He also received holiday and longevity pay. In 2003, Assistant Chief earned a total salary of $79,523.56. In 2004, Assistant Chief s total salary increased to $87,448.70. In addition, beginning January 2004, Assistant Chief became eligible for six weeks annual vacation. During the course of his employment, Assistant Chief continued to receive his pension to which he became entitled upon his retirement as a police lieutenant. In November 2004, Assistant Chief sustained a back injury, which required surgery. This injury affected his abilities to perform his duties. Assistant Chief s position was one of several targeted for elimination by the 2005 budget submitted by then-Acting Manager Jim Shaffer. In April 2005, the Municipality s Council voted to approve the 2005 budget, which did not fund the Assistant Chief s position. On April 28, Manager Peter Colangelo notified Assistant Chief of his termination effective the next day. 2 Municipal Council determined it no longer needed Assistant Chief s position. A newly created and more senior position, Public Safety Director, which headed all three safety divisions, actually paid a lower salary than the Assistant Chief position and received less vacation. Further, the Public Safety Director performed most of the duties performed by Assistant Chief. Assistant Chief appealed to the Board and sought reinstatement. In May 2006, the Board held hearings on Assistant Chief s appeal. Ultimately, it upheld his termination. The Board determined Assistant Chief did not enjoy civil service or career service protection because he did not undergo the required competitive testing. Even assuming civil service and career service protections attached, the Board concluded the Municipality could eliminate Assistant Chief s position for economic reasons, if done in good faith. See Genes v. City of Duquesne, 367 A.2d 327 (Pa. Cmwlth. 1976) (elimination of a position for reasons of economy include saving money by removal of unneeded employees, regardless of the financial condition of the municipality). Based on testimony from Mayor Anthony DeLuca, Jr. and Councilwoman Sara Kuhn, the Board determined the Municipality acted in good faith and eliminated Assistant Chief s position for economic reasons. The Board also determined the furlough procedures in Section 6.2 of the Board s Rules and Regulations2 (Board Rules) applied only to entry-level 2 Reproduced Record (R.R.) at 430a-31a. See also Municipality s Home Rule Charter §29.15.5(c), 302 Pa. Code §29.15.5(c) (career service employees can be furloughed for reasons of economy, or other reasons). 3 police officers, not management. In any event, the Board noted that following his rehire, Assistant Chief held the least senior position at the time of his termination. Assistant Chief appealed to the common pleas court. Assistant Chief argued before the common pleas court that the Board erred in ruling he did not have civil service and career service protection, that the Municipality failed to prove by substantial evidence that it eliminated Assistant Chief s position in good faith and for economic reasons, that the Board erred in capriciously disregarding evidence of bad faith, and that the Board erred in ruling the civil service and career service furlough procedures and similar procedures in Section 644 of the First Class Township Code3 did not benefit him. The common pleas court found Assistant Chief entitled to civil service protection and career employee protection. Common Pleas Op. at 3-4. Nonetheless, the common pleas court determined the Municipality possessed inherent authority to eliminate Assistant Chief s position for economic reasons. Kraftician v. Borough of Carnegie, 386 A.2d 1064 (Pa. Cmwlth. 1978). The only limitation is that it does so in good faith. Id. See also Sadowski v. City of Pittsburgh, 559 Pa. 387, 741 A.2d 180 (1999) (economic reasons constitute just cause for civil service dismissal). The common pleas court held the record provided substantial evidence that the Municipality eliminated Assistant Chief s position in good faith and for economic reasons. Further, the common pleas court rejected the assertion 3 Act of June 24, 1931, P.L. 1206, art. IV, as amended, added by the Act of May 27, 1949, P.L. 1955, 53 P.S. §55644. 4 the record included overwhelming evidence of bad faith. It noted that improved efficiency, by removing unneeded positions, is sufficient justification for elimination of those positions regardless of the fiscal health of the municipality. Moreover, the court recognized bad faith must be established by affirmative proof, not by mere suspicion or innuendo. Mamallis v. Borough of Millbourne, 401 Pa. 375, 164 A.2d 209 (1960). Additionally, the common pleas court held the furlough provisions cited by Assistant Chief did not benefit him. The common pleas court determined substantial evidence supported the Board s finding that Assistant Chief retired in 2002, and that he was rehired rather than promoted. Common Pleas Op. at 7. Thus, Assistant Chief was the least senior member of the police force when the Municipality eliminated his position. Id. As a result, the furlough provisions cited by Assistant Chief did not benefit him. Consequently, the common pleas court sustained the Board s decision and denied Assistant Chief s statutory appeal. Id. Assistant Chief filed a notice of appeal. Before this Court, Assistant Chief again argues the Municipality did not prove by substantial evidence that it terminated Assistant Chief in good faith and for economic reasons, and that the Board capriciously disregarded overwhelming evidence showing the Municipality terminated Assistant Chief in bad faith and not for economic reasons. In particular, Assistant Chief asserts the Board erred by not requiring the Municipality to show a reduction in personnel to support a finding of economic necessity. Assistant Chief also asserts the Board erred in concluding the furlough procedures for municipal civil service and career service employees did not benefit him. 5 After reviewing the record, the parties briefs and the applicable law, we determine the issues presented in Assistant Chief s appeal were aptly resolved in the thorough and thoughtful opinion of the Honorable Ronald W. Folino. Accordingly, we affirm on the basis of the common pleas court s opinion in Jack E. McCrory v. The Municipality of Penn Hills, Pennsylvania, The Personnel Board of the Municipality of Penn Hills, Pennsylvania, (Civil Div. No. SA06-906, filed June 5, 2007) (C.P. Allegheny). ROBERT SIMPSON, Judge 6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Jack E. McCrory, Appellant v. The Municipality of Penn Hills, Pennsylvania and The Personnel Board of the Municipality of Penn Hills, Pennsylvania : : : : : : : : : No. 1241 C.D. 2007 ORDER AND NOW, this 10th day of March, 2008, the order of the Court of Common Pleas of Allegheny County is AFFIRMED on the opinion of the Honorable Ronald W. Folino in Jack E. McCrory v. The Municipality of Penn Hills, Pennsylvania, The Personnel Board of the Municipality of Penn Hills, Pennsylvania, (Civil Div. No. SA06-906, filed June 5, 2007) (C.P. Allegheny). ROBERT SIMPSON, Judge

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