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COMMONWEALTH PENNSYLVANIA v. HARVEY E. YANCEY (09/13/84)

decided: September 13, 1984.

COMMONWEALTH OF PENNSYLVANIA, BUREAU OF CORRECTION, PETITIONER
v.
HARVEY E. YANCEY, RESPONDENT



Appeal from the Order of the State Civil Service Commission in the case of Harvey Yancey v. State Correctional Institution at Rockview, Bureau of Correction, Appeal No. 4241.

COUNSEL

Amy Zapp, Deputy General, with her, Allen C. Warshaw, Deputy Attorney General, and LeRoy S. Zimmerman, Attorney General, for petitioner.

J. Jay Cooper, Goldberg, Evans & Katzman, P.C., for respondent.

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

Author: Palladino

[ 85 Pa. Commw. Page 144]

The Bureau of Correction (Bureau) appeals from a decision of the State Civil Service Commission (Commission) which sustained the appeal of Harvey E. Yancey (Respondent) from his dismissal, and ordered his reinstatement with backpay. For the reasons set forth below, we reverse the decision of the Commission.

Respondent was hired by the Bureau on September 8, 1982, as a Corrections Officer Trainee, probationary status, for the State Correctional Institution at Rockview. Respondent had been convicted of three drug-related offenses in 1968 and 1969, and was hired as part of the Bureau's program for hiring ex-offenders. As part of this program, the Bureau had a written policy prohibiting the hiring of any ex-offender who was unable to carry a gun. This policy incorporated a Pennsylvania statute barring persons convicted of certain felonies from carrying firearms.*fn1 Because Respondent was not convicted of the felonies covered by the Pennsylvania statute, the Bureau had no reason to question his eligibility as a candidate for the position. Respondent signed his employment oath on September 8, 1982, and started work on September 27, 1982.

[ 85 Pa. Commw. Page 145]

In response to a separate incident on September 25, 1982, which involved a corrections officer at another institute, the Bureau suspended Respondent's employment without pay on September 27, 1982, while it re-evaluated its program of hiring ex-offenders. At that point, the Bureau became aware of a federal statute prohibiting the carrying of firearms by persons convicted of any state or federal felony with a sentence in excess of one year.*fn2 This statute's prohibition was applicable to Respondent and several other probationary and regular corrections officers. In light of Respondent's inability to carry firearms, the Bureau, after conducting a hearing, removed Respondent from his position on October 12, 1982.*fn3 On November 1, 1982, the Bureau revised its written policy concerning the hiring of ex-offenders to refer specifically to the federal firearms prohibition.

Respondent appealed his removal to the Commission, which found that Respondent's inability to carry a gun was not a merit-related criteria. The Commission concluded that the Bureau had discriminated against Respondent on the basis of non-merit factors in violation of Section 905.1 of the Civil Service Act (Act).*fn4 The Commission also found that the Bureau had applied its policy against hiring ex-offenders unable to carry firearms retroactively against Respondent.

[ 85 Pa. Commw. Page 146]

The Commission ordered the Bureau to reinstate Respondent with backpay.

During the pendency of his appeal, Respondent was granted a dispensation by the federal government to carry firearms, and the Bureau rehired him. Therefore, the only portion of the Commission's decision remaining for ...


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