Conlon v. Retirement Board of Allegheny County

715 A.2d 528, 1998 Pa. Commw. LEXIS 622, 1998 WL 404919
CourtCommonwealth Court of Pennsylvania
DecidedJuly 17, 1998
DocketNo. 2867 C.D. 1997
StatusPublished
Cited by1 cases

This text of 715 A.2d 528 (Conlon v. Retirement Board of Allegheny County) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Conlon v. Retirement Board of Allegheny County, 715 A.2d 528, 1998 Pa. Commw. LEXIS 622, 1998 WL 404919 (Pa. Ct. App. 1998).

Opinion

RODGERS, Senior Judge.

Patrick Cordon (Appellant) appeals from the order of the Court of Common Pleas of Allegheny County (trial court) upholding the decision of the Retirement Board of Allegheny County (Board) that Appellant’s retirement allowance was properly reduced pursuant to Section 1710(b) of the Second Class County Code (County Code).1 We reverse.

The following facts are not disputed. Appellant was employed as manager of security in the county’s Department of Administration, Division of Computer Services. On Saturday, February 24, 1996, Appellant was arrested and jailed on charges of indecent exposure and open lewdness. Citing personal reasons, Appellant arranged to take three vacation days and planned to return to work the following Thursday. Prior to his return, John L. Day, then Acting Director of Computer Services, informed Appellant that County Commissioners Larry Dunn and Bob Cranmer had suspended him without pay. On March 29, 1996, Commissioners Dunn and Cranmer terminated Appellant’s employment. Appellant received no written explanation for his suspension or termination, although Day told him that the actions were due to his arrest.

Appellant was an at-will employee and did not contest his termination.2 At the time of his discharge, Appellant was fifty-seven years old and had been employed with the county’s computer services division in a managerial capacity for almost twenty-six years. Based upon his age and years of service, Appellant was entitled to a retirement allowance pursuant to Section 1710(b) of the County Code.

Day forwarded a “Termination of Service Form,” dated March 29, 1996, to the Board, selecting from among seven printed choices “Dismissed through no fault or act of his or her own” as the reason for termination. On April 18, 1996, Cheryl Bateman, the Board’s Acting Executive Director, contacted Thomas J. Hillman, Acting Director of Computer Services, and requested a clarification of Appellant’s termination status. Bateman had received Form PAA-100 (County of Allegheny, Personnel Action Authorization), signed by Commissioners Dunn and Cranmer, reflecting that Appellant was involuntarily terminated from an indefinite suspension. Hillman subsequently issued a second “Termination of Service” form, selecting “In-voluntary Retirement” as the reason for termination.

As a result of the change, Appellant’s monthly retirement allowance was reduced by $284.15, from $2104.82 to $1820.67. Appellant received two reduced pension checks, without written explanation from the Board. By letter dated June 5, 1996, Appellant filed an appeal from the Board’s determination of his retirement allowance and requested a hearing pursuant to Local Agency Law.3

Hillman testified that he received a letter from Bateman requesting him to contact Board solicitor Bruce Campbell to resolve the perceived discrepancy between Appellant’s first “Termination of Service” form and the PAA-100 form reflecting Appellant’s suspension status. Hillman stated that Attorney Campbell advised him that the form must be changed to reflect termination for cause. Hillman testified that he argued against the change, because he believed that Appellant had not been suspended for any work-related reason and had been performing his duties without incident. However, Hillman stated that, according to Attorney Campbell, Appellant’s retirement application could not be processed without the change. Hillman stated that he made the change, but protested the action to the Board.

[530]*530The Board presented the testimony of John J. Wink, who was appointed as the county’s Director of Human Resources in January of 1996. Wink testified that he was directed by Commissioner Dunn’s chief of staff to process Appellant’s suspension form. The reason for the suspension, as communicated to Wink by the chief of staff, was the alleged conduct leading to Appellant’s arrest.

Wink was later present at a closed meeting with Commissioners Dunn and Cranmer and their chiefs of staff and was directed by the commissioners to prepare a discharge form for their signature. Wink opined that the commissioners terminated Appellant for cause, but he would not state that they had expressed that fact. Wink believed Appellant was discharged because of his arrest. Wink testified that he advised the commissioners that a person in charge of security could do a lot of damage to a computer system.

Following the hearing, the Board, with one member dissenting, denied Appellant’s appeal, finding that Appellant was terminated due to his arrest and the events leading up to the arrest. The trial court affirmed.

On appeal to this Court,4 Appellant notes that the statute does not define the phrase “by reason of no cause or act of his or her own.” In this case of first impression, Appellant asks the Court to provide guidelines for the Board to follow when making determinations under Section 1710(b) of the County Code. Appellant argues that, for purposes of reducing an employee’s retirement allowance, “cause” must be interpreted to mean conduct that is related to his work or his ability to perform his duties.

Appellant asserts that a reduced retirement allowance is, in principle, a partial forfeiture. Appellant asks the Court to follow Section 3 of the Public Employee Pension Forfeiture Act (Forfeiture Act),5 which provides that a public employee forfeits retirement benefits if he is convicted or pleads guilty or no defense to any crime related to his public employment. Pension benefits may not be denied under the Forfeiture Act based solely on allegations of criminal misconduct. Christy v. Board of Pensions and Retirement of City of Philadelphia, 531 Pa. 88, 611 A.2d 198 (1992).

Appellant also urges the Court to adopt the analysis of “fault” utilized in determinations under Section 3 of the Unemployment Compensation Law (UC Law).6 Section 3 of the UC Law sets forth the underlying public policy of the act and provides that unemployment reserves be used for the benefit of persons “unemployed through no fault of their own.” In contrast to Section 402(e) of the UC Law, 43 P.S. § 802(e) (willful misconduct), Section 3 is used to disqualify claimants for non-work-related misconduct. In order for a claimant to be denied benefits under Section 3 of the UC Law, an employer must establish (1) that the claimant’s conduct was contrary to acceptable standards of behavior and (2) that the conduct in question directly reflects upon the claimant’s ability to perform his assigned duties. Gillins v. Unemployment Compensation Board of Review, 534 Pa. 590, 633 A.2d 1150 (1993). Under this analysis, an off-duty arrest, absent evidence of the underlying charge, will not preclude an award of benefits. Id. In addition, a conviction alone will not bar receipt of benefits if the conduct does not reflect upon the employee’s fitness to perform his job. Dunbar v. Unemployment Compensation Board of Review, 82 Pa.Cmwlth. 575, 475 A.2d 1355 (1984).

The Board asserts that the reduction of a retirement allowance is not the same as a forfeiture and that unemployment compensation law is not relevant to a determination under Section 1710(b) of the County Code.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Waverly Heights, Ltd. v. Unemployment Compensation Board of Review
173 A.3d 1224 (Commonwealth Court of Pennsylvania, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
715 A.2d 528, 1998 Pa. Commw. LEXIS 622, 1998 WL 404919, Counsel Stack Legal Research, https://law.counselstack.com/opinion/conlon-v-retirement-board-of-allegheny-county-pacommwct-1998.