Commonwealth of Pennsylvania, Pennsylvania Game Commission, Petitioner
State Civil Service Commission (Wheeland), Respondent
Submitted: May 8, 2019
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P.
KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge HONORABLE MICHAEL H. WOJCIK,
Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge
HANNAH LEAVITT, PRESIDENT JUDGE
Pennsylvania Game Commission petitions for this Court's
review of an adjudication of the State Civil Service
Commission ordering the reinstatement of Timothy A. Wheeland
to his position as Wildlife Maintenance Propagator. The Game
Commission furloughed Wheeland when it closed the pheasant
game farm where Wheeland worked as a cost-savings and
efficiency measure after receiving a substantial budget cut.
The Game Commission contends that the Civil Service
Commission erred in holding that the Game Commission's
evidence did not make a prima facie case that
Wheeland's furlough was necessitated by lack of funds and
in refusing even to address the Game Commission's
evidence that his furlough was also necessitated by a lack of
December 12, 2016, the Game Commission notified Wheeland that
he would be furloughed as of January 27, 2017, due to a lack
of funds. Pursuant to Section 951(a) of the former Civil
Service Act,  Wheeland appealed to the Civil Service
Commission, which held a hearing on May 2, 2017.
Game Commission called Robert Boyd, the Wildlife Services
Division Chief for the Game Commission's Bureau of
Wildlife Management, to testify about why the Game Commission
closed the North Central Game Farm and furloughed Wheeland
and five other pheasant propagators who worked there. The
Bureau, inter alia, operates a pheasant propagation
program that hatches pheasant chicks and raises them at game
farms located in different parts of the state. As Division
Chief, Boyd is responsible for the pheasant propagation
program's finances and budget. Notes of Testimony,
5/2/2017, at 14-15 (N.T.__); Reproduced Record at 65a-66a
identified two Game Commission memoranda that were authored
by the agency's Executive Director, Robert Hough. Boyd
was the recipient of one memorandum and copied on the other.
In the first memorandum, Appointing Authority Exhibit 1,
Hough wrote to staff on April 7, 2015, that the Game
Commission had been instructed by the Governor's Office
to reduce "this year's budget by an additional $5.2
million; this is on top of the $14 million we were already
required to cut from our budget this winter." Appointing
Authority Exhibit 1 (AA-1); R.R. 18a. The memorandum cited a
decline in the Game Commission's revenue from natural gas
leases of state game land. Hough's second memorandum,
Appointing Authority Exhibit 2, was addressed to the
Governor's Secretary of Administration and notified the
Secretary that the Game Commission intended to furlough 13
pheasant propagators, effective January 27,
2017. Boyd was one of four senior Game
Commission staff copied on this communication to the
Secretary of Administration.
testified that the Game Commission was instructed to reduce
expenses because its funding had been reduced by 10 percent
for fiscal year 2015-2016 and 25 percent for the following
year. Boyd testified that his Bureau implemented these
instructions by not filling vacant propagator positions and
deferring certain capital improvements. Most significant was
the Bureau's decision to end the pheasant hatchery
operations and move to a "chick purchase program."
N.T. 19; R.R. 70a. Boyd explained that in 2015 the Game
Commission spent $4.7 million on pheasant propagation; in
2017, this was reduced to $3 million. Boyd explained that
personnel constitutes the largest single expense item in the
Bureau's budget for the pheasant propagation program.
explained how the decision to furlough Wheeland was made. He
stated that because "we didn't get our license fee
increase" from the legislature, it was decided to close
the game farms to save money. N.T. 21; R.R. 72a. Initially,
all four game farms were slated for closure. However, Boyd
explained that "it was decided to go ahead and keep the
program alive because it does add value to the Agency and
to our Sportsmen Unlimited." Id. Accordingly,
the Game Commission decided to keep two farms open, one in
each part of the state. He explained how the Bureau chose the
farms to be closed:
Q. And how did you pick which farms would be closed?
A. Well, it was a very difficult decision, but we divided the
state into two halves, the eastern half and the western half.
In the west, it---if you're looking at farms that would
be in the central part of that area[, ] the Southwest Game
Farm was sort of an easy winner over the Western Game Farm.
In the eastern part of the state, the Loyalsock and [North
Central] Game Farms are both very close together. So really
the deciding factor there was the fact that Loyalsock Game
Farm had a breeder flock. [It] no longer had the breeder
flock, so [it] had open pens that we could use for increased
holding capacity for birds released in the fall for
The [North Central] Game Farm did not have a breeder flock
previously and did not have those empty pens available.
Q. Mr. Boyd, is it necessary to have additional Wildlife
Maintenance Propagators in order to raise the chicks at the
A. No. We're --- we're planning to make do with the
existing staff at the Southwest and Loyalsock Game Farms.
N.T. 21-23; R.R. 72a-74a.
who was pro se, then questioned Boyd. Wheeland, who
lives close to the North Central Game Farm where he had
worked prior to the farm's closure, informed Boyd that
"on a pretty regular basis" he saw employees
maintaining the grounds. N.T. 24; R.R. 75a. When asked about
these employees, Boyd responded that staff from the two
remaining game farms worked at the North Central Game Farm as
needed, leaving "no unmet needs in terms of
manpower." N.T. 25; R.R. 76a. Wheeland then stated that
when the Game Commission first considered buying chicks, he
and other propagators were told they would not be furloughed.
In response, Boyd explained as follows:
By buying chicks, we're saving money and improving our
efficiency. But there were no plans to furlough anybody. If
we were able to go through with four farms and buy chicks,
we were going to go with full force. It's only not
getting the license fee increase that caused this level of
crisis to escalate to the point we had to close two farms
because of the lack of revenue to the [Game
N.T. 26; R.R. 77a (emphasis added). In short, it was the
"lack of revenue" from anticipated license fee
increases that required the closure of two game farms.
questioned Boyd about the Game Commission's decision to
hire 35 new Wildlife Conservation Officer Cadets
contemporaneously with the furloughs. Wheeland presented a
job description for a "Wildlife Conservation Officer
Cadet." Appellant Exhibit 1; R.R. 48a. He also presented
an email he received from the district office of Pennsylvania
State Representative Garth Everett. Appellant Exhibit 2; R.R.
50a. Representative Everett's email to Wheeland estimated
that hiring 35 new Wildlife Conservation Officer Cadets would
cost approximately $2 million.
asked Boyd how the Game Commission could afford to hire the
cadets while also finding it necessary to furlough
propagators. Boyd replied, "[j]ust understand that
I'm in charge of the Pheasant Propagation Program. I
don't work at the higher level where these decisions are
being made about what gets cut…." N.T. 31; R.R.
82a. Wheeland then asked, "I'm sure you're aware
of all this, though. Correct?" Id. Boyd
responded in the affirmative. Wheeland asked Boyd why, in
defending the pheasant propagation program against furloughs,
Boyd did not object to the cadet hirings. Boyd responded,
"Maybe I did." N.T. 32; R.R. 83a.
was sworn and then presented his case. Wheeland opined that
the propagators should have been employed until the end of
the fiscal year "seeing as how the budget was already in
place. There was money there to pay to [the propagators].
There was still work to be done." N.T. 42; R.R. 93a.
Wheeland testified that, during the winter, propagators do
maintenance on machinery at the farms. He stated that he and
the other propagators could have done maintenance at the
North Central Game Farm instead of "pushing it to one of
the other two farms and you know, making them maintain
it." N.T. 45; R.R. 96a.
Game Commission objected to the admission of Wheeland's
exhibits, Appellant Exhibits 1 and 2, as irrelevant. The
Commissioner conducting the hearing stated, "I'm
going to go ahead and admit [them] for the record….
[W]e will give those the weight they deserve during our
adjudication of this matter. But I don't see any reason
to keep them out of the record." N.T. 36; R.R. 87a. He
also stated that "[o]ne thing that is not going to come
out of our decision in this matter is we're not going to
second-guess the [Game] Commission and the Executive
Director's decision as to priority functions."
Game Commission moved to admit both Appointing Authority
Exhibits 1 and 2, and Wheeland did not object. The
So, AA-1, the two Appointing Authority exhibits, AA-1 and
AA-2 will be admitted into the record without objection.
And likewise, I do think that they provide a little more
detail of the budget situation that the [Game Commission]
was facing at the time of the furlough. So I think
they're going to be given just not equal weight,
probably a little more weight.
N.T. 38; R.R. 89a.
Civil Service Commission sustained Wheeland's appeal. The
Civil Service Commission found that the Game Commission's
admitted exhibits "AA-1 and AA-2" were hearsay and
not entitled to probative value. It further found that
Boyd's testimony did not corroborate the Game
Commission's admitted exhibits, reasoning that Boyd did
not have personal knowledge of the relationship between the
Game Commission's funding and Wheeland's furlough.
adjudication, the Civil Service Commission made the following
conclusion of law:
The appointing authority has failed to present evidence
establishing a lack of funds sufficient to justify furlough
under Section 802 of the Civil Service Act, as amended.
Civil Service Commission Adjudication at 17. Based on this
conclusion, it ordered the Game Commission to expunge the
furlough from Wheeland's record, return Wheeland to
regular employment as a Wildlife Maintenance Propagator
within 30 days and reimburse Wheeland for all wages and
emoluments due since January 27, 2017, less wages and
1, 2018, the Game Commission petitioned for this Court's
review,  and it makes three arguments on appeal.
First, it argues that the Civil Service Commission erred in
holding that the Game Commission did not present a prima
facie case that lack of funds caused Wheeland's
furlough. Second, it argues that the Civil Service Commission
erred in refusing to address the Game Commission's
evidence that lack of work caused Wheeland's furlough.
Third, it argues that in reaching its conclusion, the Civil
Service Commission improperly considered the Game
Commission's decision to hire additional law enforcement
begin with a review of the law relevant to the furlough of
employees protected by the Civil Service Act. Our Supreme
Court has explained as follows:
A "furlough" is defined by Section 3(s) of the
Civil Service Act . . . as a "termination of
employment because of lack of funds or of work." When
there has been called into question the validity of a
furlough, the appointing authority has the burden of going
forward with proof to establish a prima facie case
justifying the furlough, viz, that the furlough resulted
from a lack of funds or a lack of work. 4 Pa. Code
Department of State v. Stecher, 484 A.2d 755, 757
(Pa. 1984). A lack of funds "exists when insufficient
revenue is available to meet all financial demands unless
modifications are made in the system." Forbes v.
Department of Transportation, 434 A.2d 892, 894 n.4 (Pa.
Cmwlth. 1981). To establish a prima facie case on
lack of funds, the appointing authority must present
"specific evidence of the need for financial cuts which
would justify the furlough." Beaver County v.
Funk, 492 A.2d 118, 121 (Pa. Cmwlth. 1985).
a lack of funds, the Game Commission offered several pieces
of evidence. It offered two contemporaneous memoranda
authored by the Game Commission's Executive Director. One
memorandum was sent to Game Commission staff, and the other
was sent to the Governor's Office. The Commissioner
conducting the hearing observed that the two memoranda
"provide a little more detail on the budget situation
that the Game Commission was facing at the time of the
furlough" and would be given "a little more
weight." N.T. 38; R.R. 89a. In its adjudication,
however, the Civil Service Commission did a volte
face on these admitted memoranda, concluding that they
were not entitled to any weight because they were hearsay.
Game Commission also offered the testimony of Boyd. The Civil
Service Commission did not find Boyd's testimony
incompetent or incredible; rather, it concluded that Boyd had
not been sufficiently specific.
holding, the Civil Service Commission relied upon Beaver
County, 492 A.2d 118, where the county furloughed an
employee for lack of funds. The county's witness
testified that the county had made a policy decision to cut
personnel costs, but his testimony did not connect this
policy decision to a lack of funds. At best, the county's
witness made "general statements about the County's
1982 deficit." Id. at 121. It did not present
"specific evidence of the need for financial cuts which
would justify the furlough." Id.
County is distinguishable because the Game Commission
presented "specific evidence of the need for financial
cuts." Id. Boyd testified that the
legislature's decision not to adopt a pheasant hunting
license (and the attendant license fee) or to raise the
existing fees for hunting licenses created a
"crisis" that required the Game Commission "to
close two farms." N.T. 26; R.R. 77a. Boyd explained that
this fee revenue was needed because of declining revenue from
natural gas leases. Further, Boyd identified the actual
savings realized by the reduction in the pheasant propagation
program, for which he had budget responsibility. The
2015-2016 budgeted expense of $4.7 million for the pheasant
propagation program was reduced to $3 million in 2017. In
sum, Boyd provided detail on loss of funding that had been
absent from the county's testimony in Beaver
addition, Hough's April 2015 memorandum to Game
Commission staff projected a $35 million deficit by 2019 if
reductions in expenditures were not made. Exhibit AA-1; R.R.
18a. Thus, the Game Commission's evidence showed
insufficient revenue "to meet all financial demands
unless modifications are made in the system."
Forbes, 434 A.2d at 894 n.4.
Civil Service Commission's decision to reject the Game
Commission's evidentiary case on lack of funds cannot be
reconciled with this Court's holding in Forbes,
434 A.2d 892. In Forbes, this Court considered the
furlough of an employee of the Department of Transportation
for lack of funds. To support its furlough, the Department
presented a memorandum authored by the Secretary of
Transportation, which the employee challenged as
insufficiently specific. This Court rejected this argument,
citing the testimony of the Deputy Secretary of Highway
Administration about the memorandum:
The witness indicated that, upon learning that the
Legislature had not provided as much revenue as [the
Department] needed to maintain its funding level, the
Secretary sent a memorandum to the appropriate staff
persons alerting them to which programs had been cancelled,
or curtailed, and directing them to make
modifications in their personnel requirements to
reflect the budget reorganization.
Id. at 894 (internal footnote omitted) (emphasis
added). This Court concluded that the Deputy Secretary's
testimony together with a copy of the Secretary's
internal memorandum describing the Department's fiscal
challenges constituted substantial evidence that a lack of
funds caused the employee's furlough.
here, the Game Commission presented a memorandum of its
agency head, Robert Hough, about the Game Commission's
revenue reductions and projected deficit, as well as the
testimony of "an appropriate staff person,"
i.e., Boyd. Id. Boyd received Hough's
memorandum "alerting" Game Commission staff of the
curtailed budget and "directing them to make
modifications in their personnel requirements."
Id. Boyd's knowledge about the funding cuts from
the Game Commission was even acknowledged at the hearing by
Wheeland, who stated, while referring to the pheasant
propagation program cuts, "I'm sure you're aware
of all this, though." N.T. 31; R.R. 82a. Wheeland
acknowledged Boyd's presence at the Game Commission
meetings where the furlough decisions were made, even
chastising Boyd for not doing a better job of defending the
pheasant propagation program.
admitting Executive Director Hough's memoranda, one
internal to the Game Commission and the other a communication
to the Governor's Office, the Civil Service Commission
refused to consider them for the stated reason that they
constituted hearsay. This was error. Assuming,
arguendo, that the two memoranda were hearsay, they
were entitled to be given probative value under Walker v.
Unemployment Compensation Board of Review, 367 A.2d 366
(Pa. Cmwlth. 1976).
so-called Walker rule provides that a fact-finder
may give hearsay evidence admitted without objection its
natural probative effect so long as it is corroborated by
competent evidence of record. Id. at 370. The Game
Commission's file memoranda were admitted into the record
without objection and entitled to probative effect because
they were corroborated by Boyd, who received both memoranda.
demonstrated his personal knowledge of the Game
Commission's funding shortage. The problem began with a
decline in the agency's natural gas revenue. In response,
Boyd testified that his Bureau cut spending by deferring
capital improvements and not filling vacancies. Boyd
explained, however, that the Game Commission needed a
pheasant hunting license or increased hunting license fees to
sustain operations. When that did not occur, a
"crisis" developed for the pheasant propagation
program, for which personnel was the largest single expense
item. This required the closure of the North Central Game
Farm where Wheeland worked. Boyd testified specifically about
his direct involvement in the decision to close two game
farms and furlough Wheeland and others. Boyd's
personal knowledge of the Game Commission's revenue
challenges, i.e., "loss of funds," was
demonstrated throughout his testimony and was acknowledged
even by Wheeland.
testimony constituted competent evidence that corroborated
both memoranda. This allowed the Civil Service Commission to
make findings of fact on the basis of both of Hough's
memoranda. Even so, the Civil Service Commission erred in
making the assumption that these memoranda constituted
inadmissible hearsay. The word "hearsay" was not
spoken at the hearing, either during testimony or in closing
argument. The Commissioner conducting the hearing informed
the parties that the Game ...