Appeal from the Order of the State Civil Service Commission in case of Appeal of Albert H. Ladner, No. 1421.
David J. Batdorf, Assistant Attorney General, with him Israel Packel, Attorney General, for appellant.
John B. Lynch, for appellee, Ladner.
Judges Kramer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Rogers.
[ 12 Pa. Commw. Page 401]
The Commonwealth, by its Department of Revenue, has appealed from an adjudication of the State Civil Service Commission reinstating Albert H. Ladner to his former position of Director of the Department's Internal Audits Division. Mr. Ladner had been removed from this position, which he had held for nine years and as to which he had long since acquired regular status in the State Civil Service.*fn1 Mr. Ladner denied the appointing authority's accusations of inefficiency, insubordination and incompetency and in addition contended that his firing was an act of political partisanship by the Secretary. The Commission found for Mr. Ladner on both issues.
The Department of Revenue here questions only the sufficiency of the evidence supporting the Commission's findings that the Department had not established, as was its burden, that Mr. Ladner was inefficient, insubordinate and incompetent, and that Mr. Ladner had carried his burden of proving that his removal was politically motivated. We are thus required to examine the record, not for the purpose of weighing the evidence and making a new determination, but rather for the purpose of determining whether the Commission exercised a reasonable discretion in making the findings. We may not substitute our judgment for that of the Commission and we must accept its findings if they are supported by evidence sufficient to convince a reasonable mind to a fair degree of certainty. Ricker v. Civil Service Commission, 7 Pa. Commonwealth Ct. 329, 300 A.2d 293 (1973); Gibbs v. Civil Service Commission, 3 Pa. Commonwealth Ct. 230, 281 A.2d 170 (1971); Corder v. Civil Service Commission, 2 Pa. Commonwealth Ct. 462, 279 A.2d 368 (1971).
[ 12 Pa. Commw. Page 402]
Mr. Ladner could not be removed except for just cause. Civil Service Act, Act of August 5, 1941, P.L. 752, § 807(a), 71 P.S. § 741.807(a). His superiors were prohibited from discriminating against him in retention on any non-merit factor, including political. 71 P.S. § 741.905(a).
The Internal Audits Division of Department of Revenue consisted of five sections, the functions of which were (1) to audit other divisions of the Department of Revenue (2) to investigate matters of concern to the Department (3) to make collection of worthless checks received by the Department and other agencies of State government (4) to provide corporation clearance certificates requested by taxpayers and (5) to provide security and protective services to Department facilities. In April of 1971, Mr. Ladner's performance was formally evaluated by the Secretary of Revenue as excellent in seven of nine rating categories, including quality of work, administrative ability and relationships with others, and very good in the remaining two factors. Mr. Ladner was removed for asserted inefficiency, insubordination and incompetency by the Secretary on May 10, 1973.
The Secretary of Revenue did not testify in support of his action. The Department produced three witnesses. The first was the Chief Investigator of the Department, a former United States Secret Service Officer with no background in accounting or auditing, who had joined the Department in April 1971 and who was directed by the Secretary to conduct a general investigation of Mr. Ladner's Division in October of 1971. The investigator produced in a report dated November 17, 1971 which is in the record. This document, as might be expected, includes a number of suggestions for improvement of the work of the Division; but the deficiencies described therein are attributed to the inexperience of employes, vacancies in the staff and the assignment
[ 12 Pa. Commw. Page 403]
to this unit of an unreasonable and unmanageable number of bad checks for collection, including some from other Departments. An opening paragraph reads: "The present Director was appointed in 1964 and since this time two additional sections were added to the staff which entailed additional personnel so that the present complement calls for 63. However, due to political firings, the actual complement is now 55." The only matter critical of Mr. Ladner was an intimation that he gave inconsistent answers to some questions concerning the work. In any event, this report was neither provided to Mr. Ladner nor discussed with him by anyone. ...