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MCMULLAN v. THORNBURGH

March 4, 1981

Mary McMULLAN et al.
v.
The Hon. Dick THORNBURGH



The opinion of the court was delivered by: POLLAK

OPINION n*

This proceeding commenced in 1979 and was an application brought by numerous persons who had served as local registrars within the Pennsylvania Department of Health, until they were discharged by the Secretary effective September 11, 1979, for reinstatement in the positions from which they had been discharged. The principal ground for the lawsuit was the contention under Section 1983 of Title 42 of the United States Code that the discharges violated the constitutional rights of the several plaintiffs in that they had been removed from their public offices for the reason that they were Democrats and that such a ground for removal was a transgression of the plaintiffs' rights to untrammeled political association as most particularly recognized by the Supreme Court of the United States in Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976), and reaffirmed by the Supreme Court, several months after this litigation was commenced, in Branti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287, 63 L. Ed. 2d 574 (1980).

 A secondary ground for the plaintiffs' lawsuit was an allegation that the discharge without a hearing was, as to each of the plaintiffs, a denial of procedural due process rights in contravention of the Fourteenth Amendment. A tertiary ground was that as a matter of Pennsylvania state law the plaintiffs could not be discharged except "for cause" under the Commonwealth statute which provides the legislative rubric for local registrars, namely, Act No. 66, designated the Vital Statistics Law of 1953, and no such cause as the statute contemplated was demonstrated by the discharging authority, Secretary of Health Gordon K. MacLeod. These secondary and tertiary claims have not been pressed in the course of the proceeding which has focused on the claims arising under Elrod.

 In the Spring of 1979, shortly after Governor Thornburgh's administration came into power in Harrisburg, the Pennsylvania Department of Health produced an extended study of the system of vital statistics governed by the Department of Health. That report, made to Deputy Secretary Welch and dated April 24, 1979, focused specifically on the system of local registrars established by Act No. 66. Under Act No. 66, local registrars appointed by the Secretary of Health for each registration district throughout the state are responsible for the filing of birth certificates and of death certificates and the issuance of burial permits. In those situations where there is a question as to the cause of death as, for example, where no physician was in attendance in the context of the last illness or where the circumstances surrounding the death suggests violence or other suspicious activity, local registrars are responsible for notifying the coroner so that appropriate inquiry can be made. And the registrars, of course, are also responsible for seeing to it that copies of the certificates are transmitted to the Department of Health for central record keeping.

 Local registrars are compensated on a fee basis per certificate filed. When Act No. 66 was enacted the fee was 50 cents per certificate. The fee has now risen to a dollar per certificate. There is a statutory ceiling of $ 20,000 on the amount which any single local registrar may be compensated; and there are substantial variations in the actual amount of compensation for the not surprising reason that different registration areas have enough differences in population so that the numbers of births and deaths to be recorded and certified vary so significantly as to produce quite different amounts of compensation.

 It is, therefore, the fact that among the group of plaintiff former registrars, compensation in 1978, the last full year in which the plaintiffs served in their official posts, ranged from the statutory high of $ 20,000 down to a low of $ 4,300.30. The local registrars these plaintiffs and local registrars generally have Social Security deductions taken out of their compensation and W-2 forms are filled out by the Commonwealth. They are within the embrace of the workmen's compensation system, though it appears the matter was somewhat in dispute as little as a year ago. They also seem to be covered by unemployment compensation.

 I mention these facts because whatever ambiguity there may have been as to the employee-versus-independent-contractor status of persons occupying the post of local registrar seems to be resolved in favor of employee status. The possibility that these persons are not employees within the contemplation of Elrod and Branti is not something which has been pressed by defense counsel in this matter. To the extent that the issue is thought not to be at rest, I will say here that I conclude as a matter of law that the plaintiffs are employees of the Commonwealth within the meaning of Elrod and Branti.

 We proceed, therefore, to the facts which give focus to the Elrod and Branti claims. As I have said, in the spring of 1979 the Department of Health inquired into the operation of the registrar system. The consequent report concludes that the existing system is uneconomical, not particularly efficient, and handicapped by the fact that, by and large, persons have been, under time-worn Commonwealth political tradition, appointed to the posts of local registrars as rewards for loyal political work that is to say, the local registrar system has been regarded as part of Pennsylvania's patronage tradition. The record in this case as a whole confirms that perception of the registrar system.

 The report considers three options: one, is to retain the existing system with its handicaps; the second is to retain the system and replace current registrars current, that is, as of April 1979 with new appointees; and the third is to restructure the system with a view to having the entire registration process carried on by full-time Health Department personnel in regional offices, which number of offices would probably be increased and perhaps enlarged. The recommendation was against retention of the existing system and it was against retention of the existing system with new appointees.

 The second option was thought to involve (1) considerable costs in the payment of substantial unemployment compensation for the persons to be discharged, and (2), as the report puts it, the "continued existence of a highly political, difficult to control system," which was a feature of the existing system noted under the first option. So the report opted for the third proposed reform, that is to say, abolition of the existing local registrar system and placing the whole process of registration, certificate filing and distribution, and data collection under the jurisdiction of full-time Department of Health personnel.

 In the summer of 1979 some political pressure, most especially from persons of local political consequence in Delaware and Montgomery Counties, was, according to various Philadelphia area newspapers, being applied in Harrisburg, with a view to replacing local registrars of Democratic sponsorship with loyal Republicans. The press reports indicate that Murray Dickman, Deputy Executive Assistant to the Governor, met on at least one occasion with some of these political personages. Mr. Dickman in his testimony in this court was quite forthright about his very substantial involvement in the entire matter of terminating the several local registrars who were terminated as of September 1979, including these plaintiffs.

 Mr. Dickman, as Deputy Executive Assistant to the Governor, was not the formal discharging authority. But, as a senior aide to the Governor, he was in a position, and, indeed, it was part of his appropriate function, to be representing the Governor's wishes in conversations and consultations and memoranda involving the statutory hiring and firing authorities in the Department of Health, the Secretary and Deputy Secretary.

 In August of 1979, thirteen local registrars in Delaware and Montgomery Counties received letters dated August 28, 1979, one of which, that written to Mrs. McMullan, I will read into the record. The signing authority is Gordon K. MacLeon, M.D., the Secretary of Health.

 
Dear Mrs. McMullan: This is to advise you that your commission as Local Registrar of Vital Statistics is revoked, effective at the close of business September 11, 1979. Your replacement will be Mrs. Marie E. Rhoads, Apartment 8-A, 4800 Township Line Road, Drexel Hill, Pennsylvania, 19026.
 
Upon Mrs. Rhoads' request, you are instructed to turn over to her all accumulated registered copies of birth, death and fetal death (stillbirth) certificates, with all forms and supplies pertaining to registration, including certified copy death books Nos. 1212301, 1216001, 1228001, 1241001 and 1242801.
 
Kindly forward any original birth, death and fetal death certificates you may have on hand at the close of business September 11th in the regular envelope provided for this purpose. Payment will be arranged as soon as possible after completion of a check of the returns for the last month of your service.
 
Sincerely, Gordon K. MacLeod.

 All of the persons who received this cordial letter were Democrats. All of those named to replace the addressees of these letters were Republicans.

 "Thornburgh gave the warning in defending the replacement last week of 13 Democratic Party workers with 13 Republic Party workers as Registrars of Vital Statistics in Delaware and Montgomery Counties.

 " "I do not propose to subsidize (with) public funds the political activity of people dedicated to undermining this administration,' Thornburgh said in an exclusive ...


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