Appeals from the Order of the State Civil Service Commission in case of State Civil Service Commission v. Kathryn DeHaven, Appeal No. 3856.
Frank P. Clark, Assistant Counsel, with him, John D. Raup, Chief Counsel, for petitioner/respondent, Commonwealth of Pennsylvania.
Bruce M. Ludwig, Stephen A. Sheller & Associates, for respondent/petitioner, Joint Bargaining Committee of Pennsylvania Social Services Union et al.
Barbara G. Raup, Chief Counsel, for amicus curiae, State Civil Service Commission.
Judges Rogers, Craig and Colins, sitting as a panel of three. Opinion by Judge Rogers.
[ 82 Pa. Commw. Page 201]
These are the cross appeals of the Commonwealth on the one hand and of two local affiliates of the Service Employees International Union,*fn1 acting as collective representative of Kathryn J. DeHaven, on the other, from the award of an arbitrator in grievance proceedings. The award decided issues raised in the wake of the dismissal of Ms. DeHaven from her civil service position of Unemployment Claims Examiner I in the Berwick Office of the Employment Security Division of the Commonwealth Department of Labor and Industry.
[ 82 Pa. Commw. Page 202]
The factual background is substantially undisputed. Ms. DeHaven was initially hired in January, 1974 as an Unemployment Claims Interviewer in the Berwick Office. In 1978 she was promoted to the position of Claims Examiner I, which position she held until the events of this case. During the weekend prior to the statewide election on November 3, 1981, Ms. DeHaven's mother was requested by an unidentified person to serve as a poll watcher. Her mother was unable to serve and Ms. DeHaven volunteered for the position. On November 2, 1981, Ms. DeHaven reported to work at the Berwick Employment Security Office and discussed briefly with a number of her co-workers her intention to serve as a poll watcher the following day.*fn2 No one to whom she spoke expressed concern about her plans. A poster located in a rest area and descriptive of political activity proscribed by federal law contained, in Ms. DeHaven's opinion, no admonition applicable to her service as a poll watcher.
On election day, Ms. DeHaven performed duties as a poll watcher for about four hours at a polling place convenient to her residence. Her principal duty was that of verifying names of electors on a list of names of eligible voters provided to her.*fn3 On return to her civil service employment the following day, Ms. DeHaven again spoke to co-workers about her volunteer service as poll watcher. On this occasion she was informed by one of these conversants that such activities might be forbidden to those like Ms. DeHaven employed
[ 82 Pa. Commw. Page 203]
in the classified service. Immediately thereafter, Ms. DeHaven made inquiries of her supervisor and, in due course, a description of Ms. DeHaven's conduct was forwarded by the appointing authority's personnel officer to the Executive Director of the Civil Service Commission.
A hearing in the matter was conducted by the Commission on May 11, 1982 at which Ms. DeHaven appeared represented by counsel and following which the Commission determined that Ms. DeHaven had violated Section 904 of the Civil Service Act, Act of August 5, 1941, P.L. 752, as amended, 71 P.S. § 741.904 which prohibits persons in the classified service from engaging in political activity and provides in pertinent part as follows:
No person in the classified service shall . . . in any manner participate in or interfere with the conduct of any election or the preparation therefor at the polling place or with the election offices while counting the votes or returning the election material to the place provided by law for that purpose, save only for the purpose of making and depositing his own ballot as speedily as it reasonably can be done, nor shall he be within the polling place or within fifty feet thereof, except for the purpose of carrying out official duties and of ordinary travel or residence during the period of time beginning with one hour preceding the opening of the polls for holding such election and ending with the time when the election officers shall have finished counting the votes and have left the polling place for the purpose of depositing the election material in the place provided by law for that purpose. . . .
[ 82 Pa. Commw. Page 204]
The Commission further determined that dismissal from the classified service was mandated by Section 906 of Act, 71 P.S. § 741.906, in the case of persons found to have violated Section 904 and the Commission so ordered with respect to Ms. DeHaven. Section 906 of the Act is as follows:
Any person holding a position in the classified service who violates any of the provisions of this act or of the rules made thereunder shall be immediately separated from the service. It shall be the duty of the appointing authority of the State Agency in which the offending person is employed to remove him at once in accordance with the provisions of this act. Any person removed under this section ...