Appeal from the Order of the State Civil Service Commission in case of Appeal of John E. Wasniewski, No. 1223.
Gerald P. Ginley, with him O'Halloran, Stack & Smith, for appellant.
Martin R. Cohen, Assistant Attorney General, with him Lawrence T. Hoyle, Jr., Deputy Attorney General, and J. Shane Creamer, Attorney General, for appellee.
Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. President Judge Bowman did not participate. Opinion by Judge Mencer. Concurring Opinion by Judge Crumlish, Jr. Judge Rogers concurs in this opinion. Dissenting Opinion by Judge Kramer.
This is an appeal from an order of the State Civil Service Commission (Commission) removing John E. Wasniewski (appellant) from his position as Liquor Stock Clerk II, probationary status, with the Pennsylvania Liquor Control Board because the appellant had engaged in illegal political activity in violation of Section 904 of the Civil Service Act (the Act), Act of August 5, 1941, P.L. 752, as amended, 71 P.S. § 741.904.*fn1
Our scope of review, under the authority of Section 44 of the Administrative Agency Law, Act of June 4, 1945, P.L. 1388, as amended, 71 P.S. § 1710.44, is not de novo but looks only to errors of law or abuse of discretion as the determinative criteria. We must affirm an adjudication of the Commission unless it is determined that such adjudication violated the constitutional rights of the appellant or was not in accordance
with law, or that a finding of fact necessary to support the adjudication was not supported by substantial evidence. Corder v. State Civil Service Commission, 2 Pa. Commonwealth Ct. 462, 279 A.2d 368 (1971); Gibbs v. State Civil Service Commission, 3 Pa. Commonwealth Ct. 230, 281 A.2d 170 (1971).
The essential facts are not in dispute. In June, 1970, appellant became a committeeman for the Democratic Party in the 31st Ward, 23rd Division in Philadelphia. On December 3, 1970, he was appointed to a position as an hourly employee by the Liquor Control Board for employment in Philadelphia. It is clear, however, that he was actively engaged as a committeeman during the primary election of May, 1971. A letter, dated May 27, 1971, from appellant to his supervisor indicates that he remained politically affiliated as of that date.*fn2 On June 21, 1971, he was appointed to a full-time position as a Liquor Stock Clerk with probationary status. Not until August 2, 1971, did he notify his ward chairman that he was resigning his duties and affiliations as committeeman of the 31st Ward, 23rd Division, effective August 20, 1971.*fn3 After receiving a citizen's complaint concerning appellant's activities,*fn4 dated November 9, 1971, and subsequent to
an investigation and a hearing on the matter, the Commission ordered appellant removed from his position on February 29, 1972. An appeal was taken to this Court on March 13, 1972.
The appellant contends (1) that by exercising control over both the prosecutory and adjudicative processes of his removal, the Commission did not reasonably assure his right to a fair and unbiased adjudication and thus denied him his constitutional right of due process of law (citing for authority Donnon v. Downingtown Civil Service Commission, 3 Pa. Commonwealth Ct. 366, 283 A.2d 92 (1971)); and (2) that the decision of the Commission is not supported by competent, material and substantial evidence in that no evidence of the alleged political activity was presented.
As to the first of these, Schlesinger Appeal, 404 Pa. 584, 172 A.2d 835 (1961), and Gardner v. Repasky, 434 Pa. 126, 252 A.2d 704 (1969), "simply hold that it is no longer necessary to find actual evidence of bias by an administrative tribunal to sustain a finding that there was a denial of due process of law . . . the question before us is: Absent a showing of actual bias, did the municipality or its agency provide reasonable procedural safeguards to assure the protection of the respondent's right to a fair and unbiased adjudication?" Donnon v. Downingtown Civil Service Commission, supra, 3 Pa. Commonwealth Ct. at 369, 283 A.2d at 94. (Emphasis in original.)
It is well settled that a combination of investigative and judicial functions within an agency does not violate due process, F.T.C. v. Cinderella Career and Finishing Schools, Inc., 131 U.S. App. D.C. 331, 404 F. 2d 1308 (1968); Pangburn v. C.A.B., 311 F. 2d 349 (1st Cir. 1962), but, at least in the circumstances present in Donnon, supra, the coalescing of the prosecutory and the adjudicatory function in one individual fails to " reasonably safeguard the [dismissed employee's] right to a fair and unbiased adjudication." 3 Pa. Commonwealth Ct. at 370, 283 A.2d at 94. (Emphasis in original.)
Such individual prosecution and adjudication as in Donnon did not occur here. "Thus the record indicates that the investigation of Mr. Wasniewski's political activity was initiated after receipt of a citizen's complaint. The investigation was conducted by Mr. Balash, Chief of Verification and Personnel Investigation. Mr. Balash, of course, was neither a member of the Civil Service Board, nor was he the prosecutor at the hearing which was held to consider this matter."*fn5 We must agree with the Commission that since appellant has failed to show any bias on the part of the Commission and since, in addition, the Commission carefully separated the various functions involved in its review of this matter, it is clear that appellant was afforded his full rights to a due process hearing.
Appellant's second contention is that the Commission's adjudication is not supported by substantial evidence because no evidence of the alleged political activity was ...