DeMarco v. Pennsylvania Liquor Control Board

657 A.2d 1359, 1995 Pa. Commw. LEXIS 183, 1995 WL 231430
CourtCommonwealth Court of Pennsylvania
DecidedApril 20, 1995
DocketNo. 2449 C.D. 1994
StatusPublished
Cited by5 cases

This text of 657 A.2d 1359 (DeMarco v. Pennsylvania Liquor Control Board) 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
DeMarco v. Pennsylvania Liquor Control Board, 657 A.2d 1359, 1995 Pa. Commw. LEXIS 183, 1995 WL 231430 (Pa. Ct. App. 1995).

Opinion

NARICK, Senior Judge.

Carlo J. DeMarco (Petitioner) appeals from an order of the State Civil Service Commission (Commission) dismissing Petitioner’s appeal from a suspension pending investigation and subsequent removal from employment, and also from an order from the Commission directing the Pennsylvania Liquor Control Board (Board) to remove Petitioner from Intermittent Liquor Store Clerk employment for violation of Section 905.2 of the Civil Service Act (Act).1

The facts are as follows. On March 9, 1993, while employed in a classified service position, Petitioner filed a nominating petition for the office of city council in the City of Hazleton. On or about April 21,1993, Edwin Miller, District Manager for the Board, contacted the Election Board in Hazleton, which verified that Petitioner was running in the primary election for council. Miller phoned Petitioner to inform him that he was violating the Act by engaging in political activity, and that he had to either withdraw from the election or resign his position. Petitioner informed Miller that he had not been aware that he was violating the Act by running for office, and that it was too late to withdraw from the primary because the cut-off date for withdrawal had already passed. Miller responded that Petitioner could send a letter to the Election Board in order to withdraw, and such letter would constitute an official withdrawal, although Petitioner’s name would still appear on the ballot. Petitioner did not write such a letter, but he testified that he telephoned Ellen Sacko at the Election Board who told him it was too late to withdraw.

Following this conversation, Miller sent Petitioner a pamphlet on the “Do’s and [1361]*1361Don’ts of Political Activity,” although according to Board records Petitioner had already received a copy of the employees’ Code of Conduct during his new employee orientation. On May 18, 1998, Petitioner won the Republican nomination. In an interview with Petitioner published the next day in The Hazleton Standard Speaker, Petitioner did not express any intention to withdraw from the election. By memorandum dated May 19,1993, Petitioner was informed that he was suspended pending investigation into Petitioner’s conduct. Following such investigation and hearing, Petitioner was dismissed from his employment.

This Court’s scope of review in civil service cases is limited to a determination of whether constitutional rights have been violated, an error of law was committed, or necessary findings of fact were supported by substantial evidence. McGuire v. Department of Aging, 140 Pa.Commonwealth Ct. 378, 592 A.2d 830 (1991).

Initially, Petitioner claims that the Commission’s adjudications were not supported by substantial evidence, because there was no evidence that he intentionally violated any provision of the Act as required under Section 906 of the Act,2 which provides:

§ 741.906. Removal and disqualification of officers and employes
Except as otherwise provided in section 905.2 (Section 741.905b(f) of this title) any person holding a position in the classified service who intentionally violates any of the provisions of this act or of the rules made thereunder shall be immediately separated from the service. It shall be the duty of the appointing authority of the State Agency in which the offending person is employed to remove him at once in accordance with the provisions of this act. Any person removed under this section shall for a period of one year be ineligible for reappointment to any position in the classified service.

Petitioner claims that he wasn’t aware that he could not run for office prior to his April 21, 1993 conversation with Mr. Miller, and that he never received any pamphlets prior to that time informing him of this prohibition. He also claims that he had every intention of withdrawing after the election, because he could not withdraw prior to that time. He states that it could, “hardly be expected for him to announce on the night that he won the primary election that he was withdrawing after receiving the support of the people in the city. He had ample time within which to do so after the election, but was not given that opportunity by the Commission.”

We hold that there is substantial evidence to support the finding that Petitioner violated the Act’s prohibitions against political activity. Moreover, we agree with the Commission that the Petitioner’s knowledge of this prohibition and hence his intent to violate the act is legally irrelevant. By its very terms, Section 906 of the Act, which requires an intentional violation of the provisions of the Act for removal from classified service, exempts violations under Section 905.2 of the Act.

Petitioner was dismissed for violating Section 905.2 of the Act, which concerns prohibited political activity. The language of this section is straightforward and does not require, in any situation, that the employee must have acted with any intent or knowledge of the ban on political activity. Rather, Section 905.2(f), the subsection describing the results of violating the prohibitions against political activity, states:

(f) A person in the classified service who violates this section shall be removed from employment and funds appropriated for the position from which removed thereafter may not be used to pay the employe or individual: Provided, That, the commission at its discretion may impose a penalty of suspension without pay for at least thirty days, but not more than one hundred twenty days, if it finds that the violation does not warrant termination.

We have stated, when construing an older, substantially similar version of this section of [1362]*1362the Act,3 that we will not require an element of intent when the legislature has clearly declined to include it in the statute. McCormick v. Pennsylvania State Civil Service Commission, 77 Pa.Commonwealth Ct. 498, 466 A.2d 273 (1983) (civil service employee dismissed for placing his name on the list of candidates for auditors of Logan Township). Therefore, because the statute does not require that there be an intentional violation of the Act, the evidence concerning Petitioner’s knowledge or lack of knowledge of the prohibition against political activity is not relevant. There was substantial evidence adduced at the hearing that Petitioner ran for public office in violation of the Act, and therefore this was sufficient to support the Commissioners’ decision to dismiss his appeal and order his discharge.

Petitioner next argues that he was denied due process of law in violation of the Pennsylvania and United States Constitutions by reason of the Commission’s failure to: (1) give reasons for his removal; (2) consider the penalty of suspension as an alternative; and (3) give reasons why it failed to consider the option of suspension. He argues that the Commission failed to comply with the legislative requirements of: 1) Section 905.2(f) (providing that the Commission in its discretion may impose a penalty of suspension rather than termination); 2) Section 950,4

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Related

Pinto v. State Civil Service Commission
912 A.2d 787 (Supreme Court of Pennsylvania, 2006)
Hetman v. State Civil Service Commission
714 A.2d 532 (Commonwealth Court of Pennsylvania, 1998)

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Bluebook (online)
657 A.2d 1359, 1995 Pa. Commw. LEXIS 183, 1995 WL 231430, Counsel Stack Legal Research, https://law.counselstack.com/opinion/demarco-v-pennsylvania-liquor-control-board-pacommwct-1995.