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JAMES R. COLSTON v. COMMONWEALTH PENNSYLVANIA (11/17/88)

decided: November 17, 1988.

JAMES R. COLSTON, JR., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF COMMUNITY AFFAIRS, RESPONDENT



Appeal from the Order of the State Civil Service Commission, in the case of James R. Colston, Jr. v. Department of Community Affairs, No. 5594(R).

COUNSEL

Melville G.M. Walwyn, P.C., for petitioner.

Miles H. Mitchell, Assistant Counsel, with him, Bernadette Barattini, Acting Chief Counsel, and Timothy Searchinger, Deputy General Counsel, for respondent.

Judges Craig and Palladino, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Palladino. Judge MacPhail did not participate in the decision in this case.

Author: Palladino

[ 121 Pa. Commw. Page 180]

James R. Colston, Jr. petitions for review of an order and determination of the State Civil Service Commission (Commission) which upheld the termination of Colston from his position as Human Resources Development

[ 121 Pa. Commw. Page 181]

Manager with the Department of Community Affairs (Department).

Our recitation of the facts will be brief, inasmuch as we have dealt with this case before. Department of Community Affairs v. Colston (Colston I), 104 Pa. Commonwealth Ct. 159, 521 A.2d 509 (1987). Colston's position required that he file financial interest statements under the State Ethics Act*fn1 and the financial disclosure provisions of the Governor's Code of Conduct.*fn2 Colston filed the required statements in 1984, listing two real estate holdings. At the time, Colston owned more than thirty properties in Dauphin County. In response to a complaint that Colston was receiving phone calls from his tenants while at work, a Department Deputy Secretary directed that Colston's most recent financial statements be reviewed. After review of Colston's filings and comparison with Dauphin County property records, Colston was dismissed for failing to list his real estate holdings in the financial interest filings. Colston appealed the dismissal to the Commission. The Commission concluded that the Department's motivation in reviewing Colston's financial statement was suspect, and that the financial statement instructions are ambiguous and confusing, and that Colston should have been given an opportunity to amend his statements as such amendment "was apparently standard practice." The Commission found that Colston's removal was discriminatory and totally without just cause; accordingly, the Commission sustained Colston's appeal.

The Department appealed the Commission's decision to this court. We vacated and remanded, concluding: 1) although the instructions on the Ethics Act form are ambiguous, the Code of Conduct instructions do not

[ 121 Pa. Commw. Page 182]

    suffer from the same ambiguity; accordingly, the Department presented a prima facie case regarding Colston's failure to fully disclose his real estate holdings on the Code of Conduct form; 2) the Commission made no ruling regarding whether or not the failure to disclose on the Code of Conduct form constituted just cause; 3) the Commission failed to find facts supporting its inference regarding Department motivations for review of Colston's financial interest statements; 4) Colston had not established that it was standard practice to allow amendment of financial interest forms; thus, the Commission's finding of discrimination based on such a standard practice was in error. Colston I. We remanded for further consideration of the issue of discrimination regarding the Department's motivation in reviewing Colston's financial statements and for a ruling on the issue of whether Colston's failure to fully disclose his real estate interests on the Code of Conduct form constituted just cause for dismissal. Id.

On remand, the Commission took no further testimony or evidence, but changed its position and upheld Colston's termination. The Commission concluded that the Department had established just cause for Colston's termination and that there was no discrimination because the review of Colston's financial statements was ...


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