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MICHAEL P. ALTERMAN v. DAVID J. BAKER (01/12/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 12, 1983.

MICHAEL P. ALTERMAN, PETITIONER
v.
DAVID J. BAKER, JOHN F. BURKE, AND PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENTS

Appeal from the Order of the State Civil Service Commission in case of John F. Burke v. Board of Probation and Parole, No. 3199 and in case of David J. Baker v. Board of Probation and Parole, No. 3200.

COUNSEL

Thomas E. Mellon, Jr., Mellon and Mellon, for petitioner.

Drew Salaman, for respondents, David J. Baker and John F. Burke.

Robert A. Greevy, Chief Counsel, for respondent, Pennsylvania Board of Probation and Parole.

Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 71 Pa. Commw. Page 125]

Michael P. Alterman seeks review of a decision by the State Civil Service Commission which concluded that, in promoting the petitioner from parole agent III to parole supervisor II, the Pennsylvania Board of Probation and Parole ("board" or "appointing authority") failed to adhere to the appointment-without-examination promotion requirements of section 501*fn1

[ 71 Pa. Commw. Page 126]

    and violated the anti-discrimination provision of section 905.1*fn2 of the Civil Service Act, as amended.

We trace the genesis of this case to 1977 when the board promoted Mr. Alterman to parole supervisor II in its Philadelphia office. One of the respondents here, David J. Baker, along with Harold M. Shalon, both unsuccessful candidates for the Philadelphia supervisory post, challenged Mr. Alterman's promotion, alleging that the board discriminated against them by relying solely upon written examinations, thereby contravening section 501's criteria for effecting promotions upon merit and seniority without examination.*fn3

The commission agreed with those protestants and, by order of December 27, 1978, directed the appointing authority to (1) vacate the position of parole supervisor II, held by Mr. Alterman in Philadelphia, (2) return him to his former parole agent III position, and (3) proceed to fill the vacancy under any method authorized by the Act.

The board appealed that decision in January of 1979 and, apparently believing that its appeal stayed the commission's December 27 order, retained Mr. Alterman as a parole supervisor II. Only on June 19, 1979 did the board file a motion for a supersedeas of the commission's December 27 order; we granted that motion on September 27, 1979.

[ 71 Pa. Commw. Page 127]

Meanwhile, in April of 1979, the board had announced a parole supervisor II vacancy in its Chester office. Mr. Alterman and Mr. Burke, a supervisor I in the Philadelphia office and one of the respondents here, were two of the five applicants for that position; Mr. Baker did not apply for it. Although the board chose neither Mr. Alterman nor Mr. Burke initially,*fn4 it later appointed Mr. Alterman to that Chester post on October 22, 1979,*fn5 recording its personnel action not as a promotion but as a transfer.*fn6

Mr. Baker then applied for the supervisory position left vacant by Mr. Alterman's move to Chester;

[ 71 Pa. Commw. Page 128]

    the board, however, selected another applicant. Respondent Baker has not challenged that action.

On May 23, 1980, after Mr. Alterman's transfer to Chester, we affirmed the commission's December 1978 order, described above. Pennsylvania Board of Probation and Parole v. Baker, 51 Pa. Commonwealth Ct. 501, 414 A.2d 1117 (1980).

In an apparent attempt to comply with our order and yet effectuate the October 1979 appointment of Mr. Alterman to Chester, agents of the board demoted him to parole agent III on June 25, 1980 and immediately promoted him to parole supervisor II. Before that paper demotion and promotion, the board acquired unqualified recommendations for his repromotion, both from Mr. Alterman's immediate supervisor in Philadelphia and from his immediate supervisor in Chester.

However, when the board demoted and promoted Mr. Alterman, it did not provide notice to other employees of the supervisor II vacancy in Chester. Moreover, the commission found that the appointing authority took no formal action to effect Mr. Alterman's demotion-promotion; indeed, three of the five members of the board were not informed of the June 25, 1980 personnel action until approximately August 1980.*fn7

[ 71 Pa. Commw. Page 129]

Messrs. Baker and Burke then filed complaints with the commission. Although Mr. Baker lacked standing,*fn8 we regard the Burke complaint as a valid basis for this case.*fn9

Based upon these facts, the commission concluded (1) that the board failed to comply with the commission's December 1978 order, affirmed by this court,

[ 71 Pa. Commw. Page 130]

    and (2) that Mr. Alterman's June 25, 1980 promotion was improper because, without board action, there was no "unqualified recommendation of the appointing authority" -- the board itself -- as required by section 501 of the Act.*fn10

Mr. Alterman, however, contends that, by appointing him to Chester and filling the Philadelphia vacancy with another applicant, the board did comply with the commission's December 1978 order to vacate the parole supervisor II position in Philadelphia. Moreover, he contends that the board could not return him to his former position, as ordered by the commission, because our grant of a stay temporarily froze his supervisor II classification, thereby making compliance with the 1978 order only possible after we issued our decision in 1980. Finally, Mr. Alterman contends that because the board had previously approved his appointment to Chester, formal board validation of his June 25, 1980 promotion was unnecessary.

[ 71 Pa. Commw. Page 131]

We do not agree. In Baker v. Pennsylvania Board of Probation and Parole, we held that Mr. Alterman's 1977 promotion to the supervisor I classification violated the requirements of section 501, notwithstanding the location of the particular position. Moreover, there is substantial evidence to support the commission's finding that the board treated Mr. Alterman's appointment to Chester as a transfer, not as a promotion. Because that October 22, 1979 transfer was lateral,*fn11 based upon a promotion which Mr. Alterman never should have received in the first place, we agree with the commission that he cannot remain in Chester within the supervisor I classification. To reverse the commission's order, as Mr. Alterman requests, would merely perpetuate the discrimination we previously found present in the board's promotion process.

Even if we could agree that our stay made any personnel action but a transfer impossible, we would still uphold the commission's order, because the board, as the appointing authority, never took formal action to sanction Mr. Alterman's June 25, 1980 promotion.

As we noted above, the provision of Section 501 relevant to appointment-without-examination promotions requires that a candidate receive the "unqualified recommendation of . . . the appointing authority. . . ." The commission found, and the petitioner does not dispute, that the appointing authority never considered his June 25, 1980 promotion and that, in fact, a majority of the board never learned of the personnel transaction until August of 1980. Because a majority of the parole board constitutes a quorum and because any official action of the parole board requires a majority

[ 71 Pa. Commw. Page 132]

    vote of those present,*fn12 there was no official board action approving Mr. Alterman's 1980 promotion. Therefore, it is axiomatic that the petitioner never received the unqualified recommendation of the appointing authority, as required by section 501.

Accordingly, we affirm.

Order

Now, January 12, 1983, the order of the Civil Service Commission, sustaining the appeal of John F. Burke, Appeal No. 3200, is hereby affirmed. Solely on the ground of lack of standing, the commission's order is vacated as to the appeal of David J. Baker, Appeal No. 3199.

Disposition

Order sustaining appeal of Burke affirmed. Order sustaining appeal of Baker vacated.


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