Warren County Human Services v. State Civil Service Commission

844 A.2d 70, 2004 Pa. Commw. LEXIS 195

• Court: Commonwealth Court of Pennsylvania
• Decided: March 8, 2004
• Status: Published

Opinions

OPINION BY

Judge PELLEGRINI.¹

Warren County Human Services (Warren County) appeals from an order of the State Civil Service Commission (Commission) granting Edward Roberts’ (Roberts) challenge to his removal as a caseworker because of a 1980 conviction for aggravated assault in violation of the Child Protective Services Law (CPSL), 23 Pa.C.S. §§ 6301-6385.

On January 2, 2001, Roberts was hired by Forest/Warren Department of Human Services (Department) as a caseworker. As a condition of his employment, he submitted a copy of his Pennsylvania State Police Criminal History, which indicated, as he had also disclosed during the interview process, that he had pled guilty to the felony of aggravated assault, 18 Pa.C.S. § 2702(a), in 1980. Roberts worked for the Department until it ceased to exist on December 31, 2001. Thereafter, the Department reorganized into three separate entities: Warren County, the Forest County Children and Youth (Forest County), and the Northwest Human Development.

When Warren County began rehiring to fill its vacancies, Roberts was offered a caseworker position which he accepted on April 29, 2002. As a condition of his rehiring, Roberts was informed that he needed to submit to new clearances, including a criminal history, as required by the CPSL. After Roberts submitted his criminal history to Warren County, he applied for a transfer to Forest County. When the administrator for Forest County learned of Roberts’ conviction for aggravated assault, he determined that hiring Roberts would be a violation of Section 6344(c)(2) of the CPSL, 23 Pa.C.S. § 6344(c)(2).²

The administrator of Forest County contacted Warren County and informed it of Roberts’ preclusion from employment under the CPSL. As a result, Warren County concluded that its initial hiring of Roberts in 2001 and its rehiring of him in April 2002 was in violation of the CPSL. It was only then that Warren County realized that the CPSL had been amended in 1994, and that it had been applying the pre-amendment version of the CPSL. Prior to the 1994 amendments, the CPSL had contained a bar to employment if an applicant had committed one of the enumerated crimes, including aggravated assault, within five years prior to applying for a position with direct child contact. The 1994 amendment eliminated the five-year ban, thereby completely preventing anyone from applying for a position with direct child contact if they had previously been convicted of aggravated assault. Because of his aggravated assault conviction, Warren County terminated Roberts on June 20, 2002.

Roberts appealed his removal to the Commission alleging, inter alia, that Warren County- did not have just cause to remove him as a caseworker based upon a 1980 conviction for aggravated assault.³ At the hearing, Warren County acknowledged that the decision to terminate Roberts was based solely on the CPSL’s prohibition of hiring anyone with a prior conviction of aggravated assault and not based on his performance as a caseworker.⁴ Based upon this Court’s holding in Nixon v. Department of Public Welfare (Nixon I), 789 A.2d 376 (Pa.Cmwlth.2001), affirmed (Nixon II), 576 Pa. 385, 839 A.2d 277 (2003),⁵ the Commission declined to apply the life-time criminal history ban in Section 6344(c) of the CPSL because it found that it violated Article I, Section 1 of the Pennsylvania Constitution by providing “a per se life-time prohibition to employment without considering the individual's present or past ability ... to perform the duties of the position.” (Commission’s January 24, 2003 Decision at 11.) Because Warren County’s removal of Roberts was based solely on the CPSL, the Commission reversed Warren County’s decision to terminate Roberts for failing to present evidence establishing just cause for Roberts’ removal.⁶ This appeal by Warren County followed.⁷

In its appeal, Warren County contends that the Commission erred in finding that Section 6344(c) of the CPSL violates the Pennsylvania Constitution and in concluding that Warren County failed to present evidence establishing just cause for the removal of Roberts. Article I, Section 1 of the Pennsylvania Constitution provides:

All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.

“The Supreme Court has consistently interpreted Article I, Section 1, as guaranteeing an individual’s right to engage in any of the common occupations of life.” Hunter v. Port Authority of Allegheny County, 277 Pa.Super. 4, 419 A.2d 631, 635 (1980), citing Adler v. Montefiore Hospital Association of Western, Pennsylvania, 453 Pa. 60, 311 A.2d 634 (1973),⁸ certiorari denied, 414 U.S. 1131, 94 S.Ct. 870, 38 L.Ed.2d 755 (1974); State Board of Pharmacy v. Pastor, 441 Pa. 186, 272 A.2d 487 (1971); and Gambone v. Commonwealth, 375 Pa. 547, 101 A.2d 634 (1954). The right to engage in a particular occupation is an important right but not a fundamental right and, therefore, is subject to the rational basis test, i.e., a state may not deprive an individual of that right unless it can be shown that such deprivation is reasonably related to the state interest that is sought to be protected. Gambone; Secretary of Revenue v. John’s Vending Corporation, 453 Pa. 488, 309 A.2d 358 (1973); Nixon II.

In Nixon II, recently decided by our Supreme Court, Earl Nixon, Reginald Curry, Kelly Williams, Marie Martin and Theodore Sharp (Employees) challenged the OAPSA as unconstitutional because it required new applicants and existing employees who had been at a covered facility for less than a year to submit criminal record reports. Because of prior convictions, the Employees were either terminated from their current positions or denied a position. The Supreme Court held that the OAPSA violated equal protection because it banned potential employees convicted of an enumerated crime, but did not ban existing employees who had been similarly convicted. In finding that the OAP-SA did not satisfy the rational basis test, the Court explained:

Here, it is clear that no such real and substantial relationship exists. If the goal of the criminal records chapter is, as the Commonwealth Parties allege, to protect the Commonwealth’s vulnerable citizens from those deemed incapable of safely providing for them, there was simply no basis to distinguish caretakers with convictions who had been fortunate enough to hold a single job since July 1, 1997, i.e., a year before the effective date of the chapter, from those who may have successfully worked in the industry for more than a year but had not held one continuous job in a covered facility since July 1,1997.

The only conceivable explanation for the distinction between individuals who had completed a one year tenure in a covered facility and those who had previously had successful tenures in covered facilities, but had not been at one facility since July 1, 1997, is that the General Assembly determined that those persons convicted of the disqualifying crimes who had been working at a covered facility for more than a year presented less of a risk because they had proven that they were not likely to harm the patient population and had established a degree of trust with their patients and management. However, if convicted criminals who had been working at a covered facility for more than a year as of July 1, 1998, were capable of essentially rehabilitating themselves so as to qualify them to continue working in a covered facility, there should be no reason why other convicted criminals were not, and are not, also capable of doing the same. In fact, according to the factual backgrounds provided by the Employees, many of the Employees worked successfully in covered facilities for years. Similarly, almost all of them gained the trust of their former supervisors at the covered facilities where they worked, as is apparent by the fact that their supervisors submitted declarations in which they averred that they would rehire the Employees if they could under the OAP-SA. Thus, it would seem that these Employees, like those convicted criminals who had worked at a covered facility for more than a year as of July 1, 1998, have essentially rehabilitated themselves and should be able to continue working in covered facilities.

Nixon II, 576 Pa. at 403-04, 839 A.2d at 289. Likewise, here, the CPSL fails to satisfy the rational basis test. Section 6344(c) prohibits the hiring of applicants previously convicted of certain enumerated crimes; however, it does not ban existing employees from continuing to work in the child-care field, despite having a similar conviction.

In addition, we also hold that the CPSL’s lifetime ban of previously convicted applicants from employment in childcare is unconstitutional. Such a ban “runs afoul of the deeply ingrained public policy of this State to avoid unwarranted stigmatization of and unreasonable restrictions upon former offenders.” John’s Vending, 453 Pa. at 494-495, 309 A.2d at 362. “To forever foreclose a permissible means of gainful employment because of an improvident act in the distant past completely loses sight of any concept of forgiveness for prior errant behavior and adds yet another stumbling block along the difficult road of rehabilitation.” Id.; see also Justice Cappy’s and Justice Castille’s concurring opinions in Nixon II. Here, Warren County has failed to present any rational reason between the classification imposed upon Roberts and a legitimate governmental purpose. To the contrary, it has even admitted that but for Section 6344 of the CPSL, Roberts would not have been removed from his position as his work was exemplary — demonstrating that his remote conviction does not reflect upon his present abilities to perform the duties of a caseworker. See supra fn. 4. Because Section 6344(c), as it relates to aggravated assault, creates limitations that have no temporal proximity to the time of hiring, it does not bear a real and substantial relationship to the Commonwealth’s interest in protecting children and is unconstitutional.⁹

Because Warren County’s removal of Roberts was based solely on Section 6344(c) of the CPSL, it failed to present any evidence establishing just cause for his removal.

Accordingly, the order of the Commission is affirmed.

ORDER

AND NOW, this 8th day of March, 2004, the order of the State Civil Service Commission, No. 22814, dated January 24, 2003, is affirmed.

1 . This opinion was reassigned to the author on January 15, 2004.

2 . Section 6344 provides, in relevant part:

Information relating to prospective childcare personnel

(a) Applicability. — This section applies to all prospective employees of child-care services, prospective foster parents, prospective adoptive parents, prospective self-employed family day-care providers and other persons seeking to provide child-care services under contract with a child-care facility or program.

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(c) Grounds for denying employment.—

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(2) In no case shall an administrator hire an applicant if the applicant’s criminal history record information indicates the applicant has been convicted of one or more of the following offenses under Title 18 (relating to crimes and offenses) or an equivalent crime under Federal law or the law of another state:

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Section 2702 (relating to aggravated assault).

Section 6344(c) also bars the hiring of individuals to a position with direct child contact who has ever been convicted of, inter alia, kidnapping, robbery, indecent assault, sexual assault and prostitution, or if they have been listed in the central register as the perpetrator of child abuse or convicted of a felony related to drugs in the last five years.

3 . Section 807 of the Civil Service Act, Act of August 5, 1941, P.L. 752, as amended, 71 P.S. § 741.807, provides that: "No regular employe in the classified service shall be removed except for just cause."

4 . In fact, Susan Kern, Warren County’s Personnel Analyst, testified that she did not know of any concerns about the quality of Roberts’ work during either period of employment. She also stated that Warren County was "doing everything in [its] power to try to keep him employed,” and "he was one of the best caseworkers and [it] really did not want to lose him.” (Reproduced Record at 18a.)

5 . In Nixon I, we found that the criminal records provisions in the Older Adults Protective Services Act (OAPSA), Act of November 6, 1987, P.L. 381, as amended, added by Section 5 of the Act of December 18, 1996, P.L. 1125, 35 P.S. 10225.501-10225.508, prohibiting the hiring of individuals in the elder care field who had been convicted at any time of certain enumerated crimes, was unconstitutional because no rational relationship existed between a lifetime prohibition from employment in elder care and a legitimate governmental purpose.

The Supreme Court affirmed Nixon I, holding that it violated the Equal Protection Clause because the OAPSA only banned potential employees and not existing employees who had been convicted of an enumerated crime.

6 . Section 807 of the Civil Service Act, see fn. 3, as amended, 71 P.S. § 741.807, prohibits the removal of an employee in the classified service "except for just cause.”

7 . In reviewing a Commission decision where there is a complete record, our standard of review is limited to a determination of whether constitutional rights were violated, an error of law was committed, or necessary findings of fact are unsupported by substantial evidence. 2 Pa.C.S. § 704; Department of Health v. Nwogwugwu, 141 Pa.Cmwlth. 33, 594 A.2d 847 (1991).

8 . In Adler, the Supreme Court emphasized that the right to engage in common occupations may not be interfered with by legislation that is without reasonable relation to some purpose within the competency of the Commonwealth to effect, stating:

A law which purports to be an exercise of the police power must not be unreasonable, unduly oppressive or patently beyond the necessities of the case, and the means which it employs must have a real and substantial relation to the objects sought to be attained. Under the guise of protecting the public interests the legislature may not interfere with private business or impose unusual and unnecessary restrictions upon lawful occupations.

Adler, 453 Pa. at 72, 311 A.2d at 640.

9 . As noted by Justice Castille in his concurring opinion in Nixon II, it is possible that the Commonwealth could demonstrate that certain crimes, regardless of when they are committed, create an ongoing danger to certain categories of the population, and, in that case, a provision prohibiting the offender from employment in direct contact with that "protected class” may be rationally related to a legitimate state interest. At a minimum, the CPSL should be fine-tuned to provide for specific time limitations for each crime depending on its egregiousness. However, in this case, no sufficient reason has been provided to explain why the crime of aggravated assault, committed over 20 years ago, continues to warrant the harsh result of a complete ban from employment with direct child contact.