Appeal from the Order of the State Civil Service Commission in case of Horace L. Bell v. Bureau of Vocation Rehabilitation, Department of Labor and Industry, No. 2871.
Donald J. Klein, Klein & Merovitz, for petitioner.
Gwendolyn T. Mosley, Deputy Attorney General, with her, Harvey Bartle, III, Attorney General, for respondent.
Judges Blatt, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Craig.
[ 62 Pa. Commw. Page 389]
Petitioner Horace Bell requests this court to review an order of the State Civil Service Commission, under the Civil Service Act (Act),*fn1 which reinstated Bell to his position of Rehabilitation Counselor I, but without back pay. Bell challenges the denial of back pay as an abuse of the commission's discretion under the Act.
On August 24, 1979, Bell had been dismissed from the Pennsylvania Department of Labor and Industry (department), on the basis of two alleged acts of insubordination by Bell: (1) an argument with his section administrator, and (2) an attempt to make confidential files available to a client.
In its adjudication, concerning the first charge, the commission found that "the discussion became heated" and Bell "left the section administrator's office," but "returned to the office" upon instruction by the section administrator to do so. (Findings 21, 22). As to the second charge, the Commission specifically found that Bell "did not offer such files to the client." (Finding 32).
The commission also expressly found Bell's testimony to be credible and concluded that he had been a victim of harassment by his superiors, following his unsuccessful earlier complaints of racial discrimination.
[ 62 Pa. Commw. Page 390]
In its discussion, the Commission indicated that Bell had not been "entirely without fault" and therefore declined to award back pay, without reference to any finding of fact.
The authority to grant back pay to a reinstated employee rests with the discretion of the State Civil Service Commission.*fn2 Although the commission does have broad power to reinstate employees without back pay, Fiegenberg v. Department of Labor and Industry, 33 Pa. Commonwealth Ct. 570, 382 A.2d 498 (1978), we have consistently noted that a reinstatement without back pay is equivalent to the penalty of a suspension without pay. Eash v. Civil Service Commission, 17 Pa. Commonwealth Ct. 199, 331 A.2d 601 (1975), Baron v. Civil Service Commission, 8 Pa. Commonwealth Ct. 6, 301 A.2d 427 (1973). When an administrative agency has the discretion to impose a penalty, the record must disclose the basis for exercising that discretion, to permit adequate judicial review. State Real Estate Commission v. Bewley, 1 Pa. Commonwealth Ct. 85, 272 A.2d 531 (1971).
The department contends that three points in the record justify the withholding of back pay: (1) the finding as to Bell's leaving his section administrator's office following a heated discussion, (2) a finding that Bell previously was disciplined for insubordination, ...