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CHARLES ELLIOTT v. COMMONWEALTH PENNSYLVANIA (04/27/84)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 27, 1984.

CHARLES ELLIOTT, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT

Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Charles Elliott, No. B-206453.

COUNSEL

Charles Elliott, petitioner, for himself.

Charles G. Hasson, Acting Deputy Chief Counsel, with him, Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Williams, Jr., Barry and Barbieri, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 82 Pa. Commw. Page 108]

This case is before us on the petition for review of Charles Elliott (claimant) who was dismissed from his employment as a revenue examiner for the City of Philadelphia (employer) because he disclosed confidential tax information to a reporter from the Philadelphia Evening Bulletin. The referee found that claimant's actions constituted willful misconduct under Section 402(e) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e),

[ 82 Pa. Commw. Page 109]

    and therefore was ineligible for benefits under the Law. The Unemployment Compensation Board of Review (Board) affirmed the referee's decision.

Claimant's employment as a revenue examiner consisted of auditing business accounts of taxpayers. The results of these audits and the notes made by claimant as he was conducting the audits (work product) were placed in files stamped "confidential". The City of Philadelphia had a policy which prohibited employees from disclosing any confidential tax information to outside sources.*fn1 At the hearing before the referee, claimant admitted that he was familiar with this policy,

[ 82 Pa. Commw. Page 110]

    but contended that the information which he furnished to the newspaper reporter was not confidential.

On several occasions, claimant had accused his supervisors of favoring certain taxpayers and had complained to the Commissioner. As a result of his complaints, an investigation was conducted by the Office of the District Attorney and the Federal Bureau of Investigation. There is some dispute as to whether this investigation was ongoing at the time of claimant's dismissal, although the referee found that "claimant's charges were dismissed as unfounded." Resolution of this disputed fact is not necessary to permit us to reach a determination in this case.

In December of 1981, claimant had an interview with a newspaper reporter from the Philadelphia Evening Bulletin. He disclosed certain confidential tax information and named taxpayers whom he felt were given special consideration.*fn2 Claimant also charged his supervisors and the Commissioner with malfeasance. The reporter subsequently wrote an article which was printed in the Philadelphia Evening Bulletin regarding the charges made by claimant. When the Deputy Revenue Commissioner learned of claimant's action in disclosing confidential information to the news media, claimant was terminated.

It is axiomatic that the criteria for willful misconduct are: (1) whether claimant evidenced a wanton and willful disregard of the employer's interests and (2) whether claimant disregarded the standards of behavior which an employer can rightfully expect from

[ 82 Pa. Commw. Page 111]

    his employee. See Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 90, 309 A.2d 165 (1973). Where it is alleged that an employee has violated a work rule or policy of his employer, the employer must establish the existence of the rule and the fact of its violation; the employee, if attempting to justify the violation, must prove good cause. Partsch v. Unemployment Compensation Board of Review, 64 Pa. Commonwealth Ct. 293, 439 A.2d 1331 (1982). "Obviously, before an employee can be guilty of violating an employer's rule, he has to be made aware of that rule." Murraysville Telephone Co., Inc. v. Unemployment Compensation Board of Review, 41 Pa. Commonwealth Ct. 35, 38, 398 A.2d 250, 251 (1979). Our review of the record demonstrates that the employer clearly established the existence of the policy against disclosure of confidential information as well as the fact that claimant, through his own testimony, was familiar with that policy.

Claimant attempts to justify his conduct on the basis that he was acting in the best interest of the taxpaying public by revealing information of which he felt "the public had an absolute right" to be aware. To buttress his contention, claimant cites the Right to Know Act, Act of June 21, 1957, P.L. 390, as amended, 65 P.S. §§ 66.1-66.4. Specifically, he contends that the information which he released to the newspaper reporter falls within the definition of "public record" as set forth in Section 1(2) of the Right to Know Act, 65 P.S. § 66.1(2):

Any account, voucher or contract dealing with the receipt or disbursement of funds by an agency or its acquisition, use or disposal of services or of supplies, materials, equipment or other property and any minute, order or decision

[ 82 Pa. Commw. Page 112]

    by an agency fixing the personal or property rights, privileges, immunities, duties or obligations of any person or group of persons: Provided, That the term "public record" shall not mean any report, communication or other paper, the publication of which would disclose the institution, progress or result of an investigation undertaken by an agency in the performance of its official duties, except those reports filed by agencies pertaining to safety and health in industrial plants; it shall not include any record, document, material, exhibit, pleading, report, memorandum or other paper, access to or the publication of which is prohibited, restricted or forbidden by statute law or order or decree of court, or which would operate to the prejudice or impairment of a person's reputation or personal security, or which would result in the loss by the Commonwealth or any of its political subdivisions or commissions or State or municipal authorities of Federal funds, excepting therefrom however the record of any conviction for any criminal act.

The Right to Know Act, however, is inapplicable to the case at issue, in our opinion, because claimant made a voluntary disclosure. That is, the newspaper did not initiate a request for the information, but merely followed up on claimant's voluntary submission of such information. Section 4 of the Right to Know Act, 65 P.S. § 66.4, gives redress to "[a]ny citizen of the Commonwealth of Pennsylvania denied any right granted to him by Section 2 or Section 3 of this act . . . ." This is not the case here. Moreover, as discussed previously, claimant contends that the information released to the newspaper was not confidential because "the City through its personnel department

[ 82 Pa. Commw. Page 113]

    has provided the information to the Bureau of Employment Security." This, obviously, does not change the status of the information. Information released to the Bureau of Employment Security remains internal information surrounded by some confidentiality. Release to a newspaper destroys all semblance of confidentiality. Additionally, Section 1(2) of the Right to Know Act exempts from the term "Public Records", "any report, communication or other paper, the publication of which would disclose the institution, progress or result of an investigation undertaken by an agency in the performance of its official duties . . . ." Clearly the information released falls within this category.

Affirmed.

Order

And Now, April 27, 1984, the order of the Unemployment Compensation Board of Review, dated June 4, 1982, No. B-206453, is hereby affirmed.

Disposition

Affirmed.


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