G. Bundy v. City of Philadelphia CSC

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gregory Bundy, :

Appellant :

:

v. : No. 436 C.D. 2016

: Argued: February 7, 2017

City of Philadelphia Civil :

Service Commission, :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE JULIA K. HEARTHWAY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE SIMPSON FILED: March 9, 2017

In this appeal, Gregory Bundy (Bundy) asks whether the Court of

Common Pleas of Philadelphia County (trial court) erred in affirming a decision of

the Philadelphia Civil Service Commission (Commission) that dismissed Bundy’s

appeal from the City of Philadelphia (City) Streets Department’s decision to

terminate his employment. The decision to terminate Bundy’s employment

stemmed from his refusal to submit to a drug and alcohol test after a motor vehicle

accident in which Bundy killed a pedestrian while driving a City-owned vehicle on

way his home from a work site.

Bundy argues the Commission erred in: (1) ignoring the plain

language of the City’s Drug and Alcohol Policy (Policy); (2) upholding his

termination based on the Policy, which does not contain language relating to off-

duty conduct; and, (3) finding that Bundy was terminated for just cause absent

evidence to establish a nexus between Bundy’s purported misconduct and his

ability to execute his job duties. Upon review, we affirm.

I. Background

A. Basis for Dismissal

The Streets Department sets forth the following background and basis

for Bundy’s dismissal from employment. Bundy was an employee in the City’s

Streets Department. He was initially appointed as a Heavy Equipment Operator II

in the Highway Division. Thereafter, he was promoted to Asphalt Paving Crew

Chief. Bundy was later promoted to Streets Repairs Supervisor, a position he held

until his dismissal from employment. Over the course of his employment, Bundy

received written warnings for the following infractions: conduct; failure to check

routes; quality of work; and, disobedience.

At approximately 8:10 p.m. on April 12, 2014, Bundy was involved in

a motor vehicle accident while operating a City-owned vehicle, which resulted in

the death of a pedestrian. On that date, Bundy clocked out of work at 5:00 p.m.

One of Bundy’s supervisors, Steven Lorenz (Lorenz), received a work-related

email from Bundy at 5:40 p.m., but Lorenz could not account for Bundy’s time

between the email and the accident. Bundy next contacted Lorenz at 9:10 p.m.,

after the accident. When asked about his reasons for operating a City-owned

vehicle at that time of evening, Bundy indicated he was on his way home from a

work site. The City deemed Bundy’s actions an unauthorized use of a City-owned

vehicle, a violation of Streets Order No. 100, the Streets Department’s Disciplinary

Code.

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The City further indicated that, after Philadelphia Police concluded its

investigation at the accident scene, police transported Bundy to Police Department

Headquarters for a drug and alcohol screening. Lorenz instructed Bundy that the

screening needed to be performed. The Streets Department subsequently learned

that Bundy refused the drug and alcohol screening after arriving at Police

Department Headquarters.

The City’s Risk Management Department determined Bundy’s refusal

to submit to drug and alcohol testing was an admission that Bundy was under the

influence of a controlled substance, and, therefore, was in violation of the Policy.

The City noted that under Streets Order No. 100, this was a

dismissible offense. The City also determined that Bundy’s insubordination in

disregarding his supervisor’s instruction to undergo the screening constituted a

separate violation of Streets Order No. 100.

For these reasons, the City held a hearing in July 2014. Lorenz,

Kenneth Wilson (Wilson), Human Resources Manager, Ryan Sibert, Human

Resources Professional and Stanley Shelton (Shelton), a union representative,

attended the hearing. Lorenz determined that Bundy should be placed on

suspension without pay as of July 16, 2014, pending dismissal. Bundy then

attended an appeal hearing with Streets Department Commissioner David Perri,

Wilson and Shelton. Ultimately, the Streets Department Commissioner determined

dismissal was appropriate. As a result, Bundy remained on suspension without pay

from July 16, 2014 until his dismissal. Bundy filed an appeal to the Commission.

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B. Commission Proceedings

1. Commission Hearing

The Commission held a hearing. At the hearing, Lorenz, who serves

as a Chief Highway Engineer, testified on behalf of the Streets Department.

Lorenz explained that on Saturday, April 12, 2014, Bundy called to inform him he

was involved in an accident, police were present and he needed a supervisor to

come to the scene. When Lorenz arrived at the accident scene a short time later,

Bundy appeared distraught. Lorenz spoke to the police officer at the scene and

learned the accident resulted in a fatality. Police asked Lorenz to stay with Bundy.

At that time, Lorenz asked Bundy to take a blood test for drug and alcohol

screening. The Policy allows for a drug and alcohol test after any accident

involving a City-owned vehicle. The police officer stated he was willing to

transport Bundy to police headquarters for testing. At that time, Bundy agreed to

the blood test. Lorenz testified that if the police officer did not agree to arrange for

Bundy to undergo blood testing at police headquarters, Lorenz would have directed

Bundy to a hospital for testing. Bundy then left the accident scene with a police

officer, although he was not under arrest. Lorenz offered to accompany Bundy,

but Bundy declined. When Bundy left the scene, Lorenz was under the impression

that Bundy was going to submit to a drug and alcohol test.

Lorenz did not speak with Bundy the next day, which was a Sunday.

On Monday morning, Lorenz learned from the Streets Commissioner that Bundy

refused the drug and alcohol test. Bundy subsequently took some time off of work.

Although Bundy’s refusal to submit to testing was considered an admission of

guilt, the Streets Department did not initiate disciplinary action until Bundy was

cleared to return to work. Bundy returned to work in June or July, at which time a

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disciplinary hearing was conducted. At that time, Bundy was charged with

insubordination, unauthorized use of a City-owned vehicle and driving under the

influence (DUI). Bundy did not offer a defense at that time, and he was

recommended for dismissal.

Police Officer Michael Godlewski also testified on behalf of the

Streets Department. Officer Godlewski’s supervisor directed him to perform a

DUI test on Bundy after the accident. Officer Godlewski went to the Police

Detention Unit (PDU) where Bundy was in the bay area in the backseat of a police

car. Officer Godlewski asked Bundy if he would take a blood or breath test, to

which Bundy responded, “no.” Commission Op., 6/11/15, at 3. Officer Godlewski

informed the police officer who transported Bundy that Bundy refused to submit to

testing.

In addition, Police Officer James Tonkinson testified on behalf of the

Streets Department. Officer Tonkinson works in the Accident Investigation Unit,

and he was at the scene of the accident. Officer Tonkinson spoke to Bundy,

conducted a formal interview and took notes. He asked Bundy to voluntarily

submit to a blood test. Because Bundy did not appear intoxicated, Officer

Tonkinson lacked probable cause to require Bundy to submit to a blood test.

However, the Accident Investigation Unit’s policy is to request a blood test from

all parties involved in fatal accidents. Officer Tonkinson arranged for Bundy’s

transport to police headquarters.

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Police Officer Charlene Joyner also testified on behalf of the Streets

Department. Officer Joyner is assigned to the Traffic Unit, and she was at the

accident scene for about 40 minutes before her supervisor ordered her and the

Accident Investigation Officer to transport Bundy to the PDU for further

processing. Officer Joyner drove Bundy to the PDU for chemical testing. Bundy

rode in the backseat of her car, and Officer Joyner noticed Bundy was on the phone

during the ride, but she could not hear the conversation. Bundy told Officer Joyner

that he no longer wished to take the drug and alcohol test, and Officer Joyner

called the Accident Investigation Officer to inform him.

Bundy presented the cross-examination testimony of Wilson, the

Streets Department’s Human Resources Manager, who attended Bundy’s

unemployment compensation hearing. Wilson testified he was unaware whether

Bundy signed a consent form to undergo a drug and alcohol test on the night of the

accident. The consent form is attached to the Policy as an appendix. On direct

examination, Wilson testified he was not present at the accident scene, and he was

not aware of any documents Bundy signed on the night of the accident.

The parties stipulated to the testimony of Lakisha Hayes (Hayes), a

Streets Department employee, as follows: Bundy offered Hayes a ride home on the

night of the accident and she accepted; Bundy was sober, and Hayes would not

have accepted a ride from him if he was not; Bundy dropped Hayes off at home

approximately 20 minutes after leaving the work site, and Bundy left almost

immediately to go home; and, Hayes did not see Bundy again that night. Upon

additional questioning from the Commissioners, Hayes testified she worked

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overtime on the day of the accident. Bundy drove her home around 7:10 or 7:15

p.m.

Bundy also testified on his own behalf. On the day of the accident, he

worked all day, clocked out at 5:00 p.m. and released some employees for the day.

Because of budget concerns, Bundy was not authorized to work after 5:00 p.m., so

he did not remain clocked in, but he continued to work because he needed to set up

work schedules for the following week. Bundy testified he had “take-home

privileges” with a City vehicle, which meant he drove a City-owned vehicle to and

from work. Commission Op. at 4.

After Bundy finished working on the day of the accident, he drove

Hayes home. He considered returning to work, but decided against it and began

traveling west on Interstate 76 towards his home. At approximately 8:10 p.m., he

was traveling in the right lane when something appeared and startled him. He

thought his mirror hit something so he pulled over to investigate. He observed a

woman crying and saw another individual on the ground. Bundy walked back to

his vehicle and called 911. He also called his direct supervisor, who did not

respond, so he called Lorenz. Eventually, police arrived and Bundy remained at

the scene for three to four hours. Lorenz arrived at the scene around 9:00 or 9:30

p.m. Bundy later learned that the individual on the ground died. Bundy denied

that Lorenz asked him to take a drug and alcohol test, but he admitted that Officer

Tonkinson asked him to take a blood test. Bundy testified that if Lorenz would

have asked him to take a drug and alcohol test, he would have complied. When he

was transported to the PDU, he did not believe he was taking the test for City

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purposes. Bundy denied telling Officer Godlewski or Officer Joyner that he

refused the test.

Bundy also testified to his understanding of the Streets Department’s

“reasonable suspicion” drug testing policy, which he was required to administer

because he held a supervisory position. He indicated that he never heard of police

administering drug and alcohol testing in lieu of the City. Bundy testified he did

not believe he was on-duty at the time of the accident because he already clocked

out and was headed home. He only knew he needed to call his supervisor. Bundy

denied that he was drunk or that he consumed alcohol on the day of the accident.

Bundy explained that he did not return to work the Monday after the

accident because he had a hard time coping with the fact that someone died as a

result of the accident. He was diagnosed with post-traumatic stress disorder, and

he was on leave until he was cleared to return to work in July 2014.

2. Commission Decision

Ultimately, the Commission determined the Streets Department met

its burden of proving just cause existed for Bundy’s dismissal from employment.

The Commission noted that, once it was proven that a public employer sanctioned

an employee for just cause, it could not modify or reverse the sanction imposed by

the public employer.

Initially, the Commission determined the Policy applied here where a

City employee with “take home” privileges was involved in an accident while

returning home from work. Bundy argued the Policy did not apply because the

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accident did not occur while he was on duty, and, to be operative, the Policy

required that the accident occur while he was on-duty. On the other hand, the

Streets Department asserted that the Policy did apply. The Commission agreed

with the Streets Department.

In so doing, the Commission stated that a strict reading of the Policy

language focused on by Bundy did not take into account the spirit and intent of the

Policy, which was to create a safe working environment for “City employees and

all citizens.” Commission Op. at 6. In order to protect its citizens, the

Commission explained, the City must hold employees accountable when they are

operating City-owned vehicles. Thus, the Commission determined it was

reasonable to assume the City intended to cover both employees driving during

work hours, breaks and lunch, as well as commuting times for employees with

“take home” privileges. Id.

Further, the Commission stated, despite Bundy’s argument, he still

followed the Policy’s protocol on post-accident procedures by alerting his

supervisor immediately after the accident. The Commission indicated this act

showed Bundy knew he had an obligation to follow City policies while driving a

City-owned vehicle even though he was not “on the clock” at the time of the

accident. Id.

In finding the Policy applied, the Commission stated, it was

constrained to deny Bundy’s appeal for multiple reasons. First, the Commission

noted, other than the instant disciplinary action, Bundy was a long-standing City

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employee with an almost unblemished record. Nevertheless, the Commission

found the testimony of the Streets Department’s witnesses more credible than that

of Bundy. Specifically, as to Lorenz’s testimony, the Commission found that he

ordered Bundy to take a drug and alcohol test, and that he allowed police to

conduct the test as part of its investigation. Although Bundy testified Lorenz never

ordered him to take a drug and alcohol test, the Commission expressly rejected

Bundy’s testimony. As a supervisor, the Commission stated, Bundy should have

been well aware of the Policy, which allowed for drug and alcohol testing after an

accident in a City-owned vehicle. In light of the tragic nature of the accident, the

Commission stated, it did not believe Lorenz would fail to order a drug and alcohol

test as allowed by the Policy.

The Commission found Officer Tonkinson’s testimony particularly

persuasive. To that end, Bundy testified he did not refuse the drug test at the PDU,

but that Officer Joyner advised him he no longer needed to take the test. However,

Officer Tonkinson credibly testified he asked Bundy to volunteer for a test because

he did not have probable cause to require Bundy to submit to testing. Further, and

most importantly, Officer Tonkinson testified he asked Bundy to volunteer for a

test because it is his unit’s policy to seek drug and alcohol tests for all parties

involved in fatal accidents. Absent any evidence to the contrary, the Commission

stated, it had no reason to believe the Accident Investigation Unit would suddenly

abandon its accident investigation procedures and decide not to test Bundy.

For these reasons, the Commission concluded Bundy did, in fact,

refuse drug or alcohol testing once he arrived at the PDU. It determined Bundy’s

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refusal to submit to drug and alcohol testing constituted misconduct and supported

a finding of just cause for his dismissal. Bundy appealed to the trial court.

C. Trial Court Decision

Without taking additional evidence, the trial court dismissed Bundy’s

appeal. Bundy appealed to this Court, and the trial court directed him to file a

concise statement of the errors complained of on appeal, which he did. The trial

court then issued an opinion in support of its order pursuant to Pa. R.A.P. 1925(a).

In its opinion, the trial court discerned no error in the Commission’s

interpretation or application of the Policy. The trial court stated:

[Bundy] argues that the Commission erred in [its

determination], as it examined the ‘spirit and intent’ of

the Policy rather than its plain language.

Notwithstanding the language of the Policy, this court

cannot disagree with the Commission’s reasoning. If

[Bundy] were [sic] to be reinstated, that reinstatement

would, indeed, render the Policy useless. All any

employee, driving a City-owned vehicle involved in an

accident and after refus[ing] a test, would need to do in

order to avoid disciplinary charges would be to drive the

vehicle and claim they were [sic] not on the clock. As

[Bundy] himself testified, even if an employee was not

on the clock, that does not necessarily mean they are [sic]

not conducting City business or still working. The Policy

provides numerous other safeguards, such as prohibiting

the use of alcohol during lunch and break periods. The

Policy states that employees operating motor vehicles

must not take medication impairing their ability to

function. The purpose of the Policy is to establish that all

of the premises and motor vehicles used by the City shall

be maintained as a safe, alcohol free environment, for the

protection of both citizens and employees. … The Policy

provides that refusal to cooperate in a drug or alcohol test

will result in a positive test result. Streets Order 100

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provides that being under the influence of an intoxicating

substance carries a penalty of suspension with intent to

dismiss. The section of the Policy covering Post Accident

Procedures does not require reasonable suspicion or that

the test be given at the [medical evaluation unit]. It states

only that an employee involved in an accident must be

readily available for testing, if so ordered by his

supervisor, who he is also required to contact.

Consequently, this court cannot find an error of law in

the Commission's determination that the Policy applied

to [Bundy] where he was driving a City-owned vehicle

and was involved in a fatal accident despite the fact that

he had officially clocked out of work at 5:00 p.m. and

continued to work until 7:00 p.m.

Additionally, the Commission’s findings were

supported by substantial evidence …. In the instant case

the Commission made credibility determinations, namely

that [Bundy’s] testimony that Officer Tonkinson [did not]

[instruct] him to take the drug test, and that the police

informed him he was free to go, were not credible. The

Commission found the testimony of [Bundy’s] supervisor

[Lorenz], credible, namely that Lorenz ordered [Bundy]

to take a drug test. The Commission additionally found

the testimony of Officers Joyner, Tonkinson, and

Godlewski credible, namely, that [Bundy] initially agreed

to go to police headquarters to take the test but that he

later withdrew his consent as soon as he arrived at police

headquarters. Further, the record also does not support

[Bundy’s] version of events. Police records included as

exhibits show that [Bundy] did not stop immediately, as

he testified, but that another motorist followed him to

stop him and blocked his vehicle from leaving. Police

Corporal John Niles of the Pennsylvania State [Police]

noted that he advised another trooper to keep an eye on

[Bundy] as he may have been trying to leave the scene.

Lorenz himself stated, in his recommendation for

disciplinary action, that [Bundy] was being

uncooperative at the scene and that he instructed [Bundy]

to have a test done, and that there was some ‘back and

forth’ with [Bundy] regarding the test before he was later

informed [Bundy] had refused the test. Officer Joyner

stated that [Bundy] had been on the phone while she

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transported him to Police Headquarters and that he told

her that he did not trust the police.

In the instant case the record did support that

[Bundy] was ordered to take the test by Lorenz, and that

he refused. This is the reason the [Streets] Department

dismissed him, and the reason the Commission upheld

his dismissal. As such, the dismissal was proper and

should be affirmed.

Tr. Ct., Slip Op., 6/17/16, at 15-17 (citations omitted). This matter is now before

us for disposition.

II. Issues

On appeal,1 Bundy asserts the Commission erred in: (1) ignoring the

plain language of the Policy and instead utilizing a “spirit and intent” it created to

nullify the Policy’s express terms, thereby creating a new policy, which it then

applied to Bundy; (2) upholding Bundy’s termination based on the Policy, which

the City conceded did not contain language governing off-duty conduct; and, (3)

finding that Bundy, an 18-year veteran of the Streets Department, was terminated

for just cause absent any evidence establishing a nexus between Bundy’s non-

participation in a voluntary blood test conducted by Philadelphia Police at police

headquarters and his ability to execute his job duties.

1

A court’s review of a municipal civil service commission is limited. Where a full and

complete record is made of the proceedings before a municipal civil service commission, a

reviewing court must affirm the adjudication unless it is in violation of the constitutional rights

of the appellant or not in accordance with law, the procedural provisions of the local agency law

are violated or a finding of fact of the commission necessary to support its adjudication is not

supported by substantial evidence. Davis v. Civil Serv. Comm’n of Phila., 820 A.2d 874 (Pa.

Cmwlth. 2003).

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III. Discussion

A. Interpretation and Application of the Policy

1. Contentions

Bundy first argues the Commission erred in ignoring the Policy’s

unambiguous language and refusing to apply the plain meaning of its terms.

Instead, he contends, the Commission created a “spirit and intent” standard to

nullify the Policy’s valid terms so that it could apply or interpret the Policy how it

wished.

Bundy asserts the Policy, a contract negotiated and bargained for by

and between the City and various unions and which bound both the City and every

one of its non-uniformed employees, must be interpreted in accordance with

general principles of contract interpretation. Bundy then sets forth general

principles of contract interpretation, and he argues, where, as here, a contract is

unambiguous, a reviewing tribunal should not look beyond the contract’s language

in interpreting the meaning of its terms.

Here, Bundy argues he was terminated on the ground that he violated

Section C of the Policy. As Lorenz testified, the Policy was a “union-

management” document negotiated and bargained for by and between the City and

its unions. Appellant’s Br. at 16 (citing Commission Hr’g, Notes of Testimony,

3/11/15, at 29). Because it was the result of negotiations and bargaining, Bundy

asserts, the Policy is a contract. Bundy maintains that, as the reviewing body

determining the applicability of the contract used to terminate him, the

Commission was required to follow established legal principles.

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Bundy asserts that while the City consistently misquoted the

applicable sections of the Policy, excluding from its recitation essential and precise

language that is harmful to its position, it has not at any point alleged the Policy is

ambiguous. Nor did any witness testify to any ambiguity. Further, Bundy

contends the City essentially conceded the Policy is unambiguous below. See Tr.

Ct. Hr’g, Notes of Testimony, 2/18/16, at 26-27. Bundy also maintains that neither

the Commission nor the trial court made any finding of ambiguity. As such,

Bundy asserts, the inquiry must be limited to the four corners of the Policy.

Bundy points out that Section C of the Policy states:

C. POST ACCIDENT DRUG AND ALCOHOL

SCREENING

1. A non-uniformed employee who is involved in an

accident as defined in Section III. A.1. while operating a

[City] motor vehicle or a personally owned vehicle

operated while conducting [City] business shall inform

his or her supervisor of the accident as soon as

practicable and shall remain readily available for drug

and alcohol testing, if required by the appointing

authority or designee. Failure to notify a supervisor of an

accident may result in discipline.

Supplemental Reproduced Record (S.R.R.) at 309b (emphasis added). In turn,

Section III.A.1. of the Policy provides:

III. DEFINITIONS:

A. For the purposes of this policy, the following

definitions shall apply:

1. The term ‘accident’ shall mean any occurrence

involving the operation of a motor vehicle, which results

in the loss of human life or bodily injury requiring

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[hospitalization] for medical treatment or observation, or

resulting property damage of more than $500.00. The

term shall also mean any occurrence involving the

operation of a motor vehicle that results in an employee’s

citation for [DUI]. Any such incident or accident must

occur while on duty.

2. ‘Operation of a Motor Vehicle’ shall mean the

operation of a City owned or leased vehicle or the

operation of a personal vehicle being used while

performing job duties.

S.R.R. at 304b-05b (emphasis added). Bundy notes that the Policy does not define

the term “on duty”; thus, that term must interpreted according to its plain meaning.

According to Merriam-Webster’s Online Dictionary, Bundy asserts, “on duty” is

defined as “working at a particular time.”2 According to the same source,

“working” is defined as “engaged in work especially for wages or a salary.”3 “Job”

is defined as “the work that a person does in order to earn money.” 4 And, “duty” is

defined as “something that is done as part of a job.”5 As such, Bundy argues, the

plain meaning of Section C of the Policy is that any non-uniformed employee

driving a City-owned vehicle who is involved in a fatal accident while engaged in

work shall inform his supervisor and shall remain available for drug testing, if

required.

2

Merriam-Webster’s Online Dictionary, Definition of duty (5), https://www.merriam-

webster.com/dictionary/on%20duty (last visited Feb. 14, 2017).

3

Merriam-Webster’s Online Dictionary, Definition of working (2),

https://www.merriam-webster.com/dictionary/working (last visited Feb. 14, 2017).

4

Merriam-Webster’s Online Dictionary, JOB Defined for English Language Learners,

https://www.merriam-webster.com/dictionary/job (last visited Feb. 14, 2017).

5

Merriam-Webster’s Online Dictionary, Duty Defined for English Language Learners,

https://www.merriam-webster.com/dictionary/duty (last visited Feb. 14, 2017).

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Here, Bundy asserts, it is undisputed that he clocked out of work at

5:00 p.m. on the night of the accident. Commission Op. at 1. It is also undisputed

that he had “take home” privileges that allowed him to possess and use a City-

owned vehicle both during and after work hours. Id. at 4. Additionally, it is

undisputed that the accident occurred at approximately 8:10 p.m. Id. Further, it is

undisputed that at 8:10 p.m., Bundy was not being paid by the City, and he was not

performing any work duties, but rather was on his way home. Id. Thus, Bundy

contends, he was not on duty when the accident occurred. Because Section C of

the Policy is, by its express terms, only triggered if an accident occurs when an

employee is on duty, Bundy maintains, it was not triggered when he was involved

in an off-duty accident.

Notwithstanding this plain language, Bundy argues, the Commission

found that a strict reading of the Policy did not take into account its spirit and

intent. Thus, the Commission determined, it was reasonable to assume the City

intended to cover both employees during work hours, breaks and lunch, as well as

covering commuting times for employees with “take home” privileges. In so

finding, Bundy asserts, the Commission violated basic tenets of contract law. To

that end, he maintains, the Commission ignored the clear, unambiguous text of the

Policy.

Bundy also asserts, assuming for the sake of argument that this Court

finds the Policy is not a contract, but rather is more akin to a statute, the

Commission’s interpretation and application still constitutes reversible error.

Specifically, he contends, even if the policy is interpreted like a statute, the

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Commission was still faced with unambiguous language; as such, it was required

to accept the express terms as a manifestation of the parties’ intent. As a result,

Bundy asserts, under a statutory construction analysis, the Commission’s creation

of a “spirit and intent” concept to nullify the terms of an unambiguous document

constitutes error.

In addition, Bundy argues, even if the relevant Policy provisions were

ambiguous, the Commission’s effort to create a “spirit and intent” exception to

reach its decision still constitutes reversible error as the term “on duty” is not

reasonably subject to more than one meaning.

Moreover, Bundy contends, even where a document is ambiguous,

ambiguities can only be resolved through the presentation of competent evidence.

Here, he argues, the only Streets Department employee who testified at the hearing

was Lorenz, and he made no mention of any ambiguity. Bundy also asserts Lorenz

did not testify to any alternative meaning of any Policy term.

2. Analysis

The issue before the Commission on an appeal of a dismissal is to

determine whether the City proved the charges against the employee and whether

those charges constitute just cause for discipline. Philadelphia Home Rule Charter

§7-303, 351 Pa. Code §7.7-303 (dismissal of civil service employee “shall be for

just cause only”); City of Phila. v. Civil Serv. Comm’n (Johnson), 967 A.2d 1034

(Pa. Cmwlth. 2009).

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Just cause is “largely a matter of discretion on the part of the head of

the department.” Davis v. Civil Serv. Comm’n of Phila., 820 A.2d 874, 878 (Pa.

Cmwlth. 2003). Just cause for dismissal must be related to the inefficiency,

delinquency or misconduct of the employee. Id. However, even a single instance

of misconduct or an error of judgment can constitute just cause for dismissal if it

adversely reflects on an employee’s fitness for his duties. Id.

Further,

[t]o be sufficient … the cause should be personal to the

employee and such as to render him unfit for the position

he occupies, thus making his dismissal justifiable and for

the good of the service.

… All the law requires is that the cause be not religious

or political, but concerned solely with the inefficiency,

delinquency or misconduct of the employe[e]. A wide

latitude must be left to the superior officer-in-fact a

discretion conditioned on its exercise in good faith and

not as a screen for some reason not based upon the fitness

of the employe[e] to fill the position.

Benvignati v. Civil Serv. Comm’n, 527 A.2d 1074, 1075 (Pa. Cmwlth. 1987).

In addition, as an appellate court, we cannot reweigh the evidence or

substitute our judgment regarding which witnesses to believe. Perry v. State Civil

Serv. Comm’n, 38 A.3d 942 (Pa. Cmwlth. 2011). Whether conduct constitutes just

cause for dismissal is an issue of law subject to this Court’s plenary review.

Johnson.

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Here, the Streets Commissioner dismissed Bundy from his

employment as a Streets Repair Supervisor based on his refusal to submit to a drug

and alcohol test after a motor vehicle accident in which Bundy hit and killed a

pedestrian while operating a City-owned vehicle. S.R.R. at 329b. The

Commissioner also determined that Bundy’s disregard of his supervisor’s

instruction to submit to the drug and alcohol test constituted insubordination. Id.

Further, the Commissioner noted, because Bundy’s supervisor could not account

for the period between Bundy’s last email (at 5:40p.m.) and the accident (after 8:00

p.m.), Bundy engaged in the unauthorized use of his City-owned vehicle.

Ultimately, the Commission determined the Streets Department

proved just cause for Bundy’s dismissal from employment. In so doing, the

Commission explained, as relevant:

[W]e find that the [Policy] is applicable in this case

where a City employee with ‘take home privileges’ is

involved in an accident while returning home from work.

[Bundy] argues that the [Policy] does not apply [here]

because the accident did not occur while he was on duty.

The [Streets] Department, on the other hand, argues that

the Policy does apply because a strict interpretation of the

Policy would render it useless. We agree with the

[Streets] Department. A strict reading of the Policy

language fails to take into account the spirit and intent of

the Policy which is to create a safe working environment

for ‘City employees and all citizens.’ In order to protect

its citizens, the City must hold employees accountable

whenever they are driving City-owned vehicles.

Accordingly, it is reasonable to assume that the City

intended to cover both employees driving during working

hours, breaks and lunch, as well as covering commuting

times for employees with ‘take home privileges.’ …

20

Interestingly enough, we note that despite

[Bundy’s] argument, he nevertheless followed the Policy

rules on post-accident procedure by alerting his

supervisor immediately after the accident. This act

demonstrates that [Bundy] knew he had an obligation to

follow City policies while driving a City-owned vehicle

even though he was not working at the time of the

accident.

In finding that the [Policy] applies in this case,

after a review of the evidence presented, we must deny

the instant appeal for the following reasons. …

[T]he Commission finds that the testimony of [the

Streets] Department’s witnesses is more credible than the

testimony rendered by [Bundy]. Specifically, in regard

to the testimony of [Lorenz], we find that he ordered

[Bundy] to take a drug /alcohol test and allowed [Bundy]

to have the [p]olice perform the testing since it was part

of their [sic] investigation. Although, [Bundy] testified

that [Lorenz] never ordered him to take a drug/alcohol

screen, we find that assertion unbelievable. As a

supervisor, [Bundy] should be well aware of the [Streets]

Department’s policy allowing for drug and alcohol

testing following an accident in a City-owned vehicle. In

light of the tragic nature of the accident, we do not

believe [Lorenz] would fail to order a drug and alcohol

test as allowed for by the Policy.

Additionally, this Commission finds Officer

Tonkinson’s testimony particularly persuasive. [Bundy]

testified that he did not refuse the drug test at the PDU,

but that Officer Joyner advised him that he no longer

needed to take the test. However, Officer Tonkinson

credibly testified that he asked [Bundy] to volunteer for a

test because he did not have probable cause to require

[Bundy] to submit to testing. Furthermore, and most

importantly, Officer Tonkinson testified that he asked

[Bundy] to volunteer for a test because it is his unit’s

policy to seek drug and alcohol testing for all parties

involved in fatal accidents. Absent any evidence to the

contrary, we have no reason to believe that the Accident

Investigation Unit would suddenly abandon its accident

21

investigation procedures and decide not to test [Bundy].

Accordingly, this Commission believes that [Bundy] in

fact refused testing once he arrived at the PDU.

Based on the foregoing, we find that [Bundy’s]

refusal to submit to drug testing constitutes misconduct

and supports a finding of just cause for his dismissal.

Comm’n Op. at 6-7 (citation omitted).

For the reasons set forth below, we agree with the result reached by

the Commission, i.e., that the Streets Department proved just cause for Bundy’s

dismissal from employment. However, we do not base our determination on the

“spirit and intent” of the Policy. Rather, our review of the relevant Policy

provisions as a whole leads to a conclusion that the Policy applies here and that

Bundy violated the Policy. Moreover, the Commission’s supported determinations

reveal that Bundy was insubordinate in refusing to follow Lorenz’s direction that

he undergo a drug and alcohol test at police headquarters.

With regard to the applicability of the Policy to the facts presented

here, Section II of the Policy states, as pertinent:

The … use of prohibited substances or alcoholic

beverages is strictly prohibited while on City premises;

or during any work hours; or while driving City-owned

or -leased motor vehicles; or while driving personal

motor vehicles, owned or leased, while conducting City

business. This includes during lunch and break periods.

S.R.R. at 303b (emphasis added). Additionally, the testing “Consent Form”, which

is attached as Appendix II of the Policy states: “Refusal to cooperate in a drug or

alcohol test will result in a positive test result.” S.R.R. at 315b (emphasis in

22

original); see also S.R.R. at 39b (Lorenz testified: “It is the Streets Department

position that because the blood test was not done, it’s an admission of guilt ….”).

Further, Section V(C)(1) of the Policy (“POST-ACCIDENT DRUG

AND ALCOHOL SCREENING”) provides:

A non-uniformed employee who is involved in an

accident as defined in Section III.A.1. while operating a

[City] motor vehicle or a personally owned vehicle

operated while conducting [City] business shall inform

his or her supervisor of the accident as soon as

practicable and shall remain readily available for drug

and alcohol testing, if required by the appointing

authority or designee. …

S.R.R. at 309b (emphasis added).

In turn, Section III(A)(1) defines “accident” as:

any occurrence involving the operation of a motor

vehicle, which results in the loss of human life or bodily

injury requiring hospitalization for medical treatment or

observation, or resulting in property damage of more than

$500.00. The term shall also mean any occurrence

involving the operation of a motor vehicle that results in

an employee’s citation for [DUI]. Any such incident or

accident must occur while on duty.

S.R.R. at 304b. Also, the Policy defines “Operation of a Motor Vehicle” as “the

operation of a City owned or leased vehicle or the operation of a personal vehicle

being used while performing job duties.” S.R.R. at 305b (emphasis added).

23

Here, Bundy served as a Street Repair Supervisor in the Highway

Division of the Streets Department. S.R.R. at 249b. The Highway Division

maintains City streets and performs snow removal. S.R.R. at 250b.

As a Streets Repair Supervisor, Bundy had supervisory authority over

22 employees, and he was charged with ensuring that those employees followed

the Policy. S.R.R. at 244b, 251b, 265b. Bundy was also required to account for

and be responsible for the use of City property. S.R.R. at 255b-56b. Further, as a

supervisory-level employee, Bundy had “take home” privileges of his City-owned

vehicle. S.R.R. at 60b; 257b.

In April 2014, while operating his City-owned vehicle on his way

home after leaving the job site, Bundy struck and killed a pedestrian who was on

the shoulder of Interstate 76. S.R.R. 259b-263b. In his testimony before the

Commission, Bundy acknowledged that he was required to inform his supervisor

of the accident. R.R. at 266b. Further, the credited testimony reveals that after the

accident, Bundy’s supervisor, Lorenz, directed Bundy to submit to drug and

alcohol screening, and that Bundy refused. S.R.R. at 26b, 89b, 128b-29b, 156b.

Further, although Bundy argues he was not “on duty” when the accident occurred

because he already “clocked out,” Bundy construes the Policy too narrowly.

To that end, as set forth above, Section II of the Policy prohibits

employees from using prohibited substances or alcoholic beverages while driving

City-owned motor vehicles. Noticeably absent from this provision is any language

that requires that the employee be “on the clock;” to the contrary, the provision

24

explicitly contemplates that it applies during other “off the clock” periods, i.e.,

lunch and break periods. S.R.R. at 303b.

In addition, Section V(C)(1) of the Policy states that an employee

involved in an accident (as defined in Section III(A)(1)) while operating a City

vehicle shall, among other things, remain available for drug and alcohol testing, if

required. Section III(A)(1) defines an accident, in pertinent part as, any occurrence

involving the operation of a vehicle that results in the loss of human life. It also

states: “Any such … accident must occur while on duty.” S.R.R. at 304b. The

term “on duty” is not defined in the Policy.

Nevertheless, the dictionary broadly defines the term “on duty” as

“engaged in or responsible for an assigned duty or task.” MERRIAM-WEBSTER’S

COLLEGIATE DICTIONARY 360 (10th ed. 2001); see also WEBSTER’S THIRD NEW

INTERNATIONAL DICTIONARY 705 (2002) (defining “on duty” as “assigned to a task

or duty; engaged in or responsible for some specific performance”). Here, as an

employee with “take home” privileges, Bundy was responsible for the assigned

duty of safely operating his City-owned motor vehicle to and from his work site.

Indeed, before the Commission, Lorenz credibly explained: “[Bundy] has take-

home privileges. Therefore the responsibility of that vehicle to get to and from the

job site is his.” S.R.R. at 60b. As such, no error is apparent in the Commission’s

ultimate determination that the Policy applied to the facts presented here.

This conclusion is supported by our review of the Policy as a whole.

More particularly, our review of the Policy in its entirety reveals that, with regard

25

to the operation of a motor vehicle, the phrase “while conducting [City] business”

is only used in connection with references to an employee’s use of his personally-

owned vehicle. Thus, an employee who is operating a City-owned vehicle is

considered to be conducting City business and subject to the Policy’s drug and

alcohol screening requirements in the event of an accident. Indeed, Section II of

the Policy “strictly prohibits” the use of alcoholic beverages or prohibited

substances while driving City-owned vehicles regardless of whether an employee

is conducting City business while operating the City-owned vehicle. S.R.R. at

303b.

Consequently, no error is apparent in the Commission’s determination

that the Policy, which required Bundy to submit to a drug or alcohol test after an

accident that resulted in a fatality when directed to do so by his supervisor, applied

here and was violated. In turn, no error is apparent in the Commission’s

determination that Bundy’s violation of the Policy constituted just cause for his

dismissal from employment. See, e.g., Davis (single instance of misconduct or

error of judgment can constitute just cause for dismissal if it adversely reflects on a

person’s fitness for his duties); see also Perry (affirming removal of manager for

violating policy prohibiting possession of weapons in workplace). Additionally,

because the credited evidence reveals Bundy refused to follow his supervisor’s

directive that he submit to drug and alcohol testing after the accident, Bundy’s

conduct constituted insubordination,6 which also establishes just cause for his

dismissal. See, e.g., Gonzales v. Dep’t of Public Welfare, 408 A.2d 893 (Pa.

6

Insubordination denotes either disobedience or defiance or contempt of authority and is

simply an unwillingness to submit oneself to the authority of organizational superiors. McCain

v. Dep’t of Educ., E. Stroudsburg State Coll., 454 A.2d 667 (Pa. Cmwlth. 1983).

26

Cmwlth. 1979) (failure to follow a supervisor’s instructions is an example of

behavior that goes to the merits and is just cause for dismissal; thus, just cause

existed to remove employee who refused to leave employer’s premises after being

instructed to do so).

B. Standards for Off-Duty Conduct

1. Contentions

Bundy next asserts the Commission erred when it found that just

cause existed to terminate him despite the City’s failure to present evidence

establishing a standard of conduct by which to measure the off-duty conduct of

Streets Department employees.

Bundy contends the central question underlying this case is whether or

not he was subject to the Policy when he was involved in the accident such that his

failure to participate in a voluntary blood test was a basis for termination. Because

Bundy was not employed in a safety sensitive position, he argues, his off-duty

conduct could only result in termination if there was a written work rule creating a

standard of conduct applicable to his off-duty conduct or if the conduct related

directly to a function of his job, thus rendering him no longer qualified. As there is

no evidence of either, he asserts, the Commission’s finding of just cause is

erroneous.

To that end, Bundy maintains, determining whether an agency carried

its burden of proof and production regarding just cause for termination is a two-

part inquiry. First, the agency must present evidence establishing the factual truth

of its allegations. Second, the agency must show the proven allegations touched on

27

the employee’s fitness for employment such that dismissal is warranted. Soergel v.

Bd. of Supervisors of Middlesex Twp., 316 A.2d 89 (Pa. Cmwlth. 1974).

Bundy acknowledges that employees in “highly sensitive” positions

are generally subject to stricter, more stringent standards of conduct because of the

need to avoid an appearance of impropriety. Johnson, 967 A.2d at 1039 (internal

citation omitted). As such, they can routinely be removed as a result of both on-

and off-duty conduct, even where there is no rule that explicitly proscribes the

conduct in which they engaged. See e.g. Stone v. State Corr. Inst. at Graterford,

422 A.2d 1227 (Pa. Cmwlth. 1980). Similarly, Bundy asserts, individuals who

function in law enforcement or investigative capacities can also be subject to

removal after off-duty misconduct if the conduct shows a lack of judgment that

erodes confidence in the character required to perform their duties. See, e.g.,

Johnson.

Bundy maintains that civil service employees that do not serve in

highly sensitive positions or positions involving investigatory functions can

generally be subject to discipline for off-duty misconduct if the agency shows the

off-duty conduct directly relates to the employee’s ability to execute his job duties,

even in the absence of a written work rule. See, e.g., Walsh v. State Civil Serv.

Comm’n (Dep’t of Transp.), 959 A.2d 485 (Pa. Cmwlth. 2008) (just cause existed

to terminate supervisor who inappropriately accessed confidential information of

his ex-wife’s paramour when he was a high-ranking employee responsible for both

safekeeping records and ensuring other employees did not violate agency policy).

Bundy contends that, although there was a written work rule in Walsh, this Court

28

focused on the relatedness of the conduct to the employee’s job duties. Id.; accord

City of Phila. v. Civil Serv. Comm’n (Gibbs), (Pa. Cmwlth., No. 2531 C.D. 2009,

filed December 22, 2011) 2011 WL 10877954 (unreported) (finding just cause to

terminate employee who admitted to submitting false timesheets at his part-time

job when, as a civil servant, he was responsible for conducting investigations,

collecting samples and testifying to their chain of custody and his honesty and

integrity were integral to his job); see also Tech v. Wattsburg Area Sch. Dist. Bd.

of Educ., 373 A.2d 1165 (Pa. Cmwlth. 1977) (finding just cause to terminate bus

driver after two off-duty accidents, despite her clean “on-duty” record, when

accidents were her fault and created doubt as to her ability to safely drive a school

bus).

Bundy maintains that, absent evidence that the off-duty conduct

directly relates to an employee’s job duties such that it makes him unfit for

continued employment, a civil servant in a non-safety sensitive position can only

be terminated based on off-duty conduct if the alleged conduct is proscribed by

written work rule. In support, Bundy relies primarily on Philadelphia Civil Service

Commission v. Owens, 556 A.2d 967 (Pa. Cmwlth. 1989). Bundy asserts the facts

underlying his termination are strikingly similar to those in Owens. Here, he

argues, his off-duty conduct was used as the basis for his termination. As such, the

City appropriately cited to a policy, which it asserts is the applicable written work

rule. Bundy contends the Commission’s duty was to examine the Policy and

determine whether his off-duty conduct violated it. Because the plain language of

the Policy expressly excludes accidents that occur while an employee is off-duty,

Bundy argues, the Policy is not a written work rule proscribing his off-duty

29

conduct. As such, it cannot form the basis for his termination because the rule only

applies to on-duty accidents.

Bundy contends the stated reason for his removal was “refusal to be

tested is an admission of being under the influence of a controlled substance and

therefore, violates the [Policy].” Br. of Appellant at 30. Integral to determining

whether the City proved this charge is establishing that Bundy was required to be

tested. In presenting no evidence establishing that Bundy violated any policy, he

argues, here, as in Owens, there is no standard of conduct to apply to his off-duty

conduct and, as such, no evidence on which the Commission’s finding of just cause

can stand.

2. Analysis

Based on our determination that the Commission properly determined

the Streets Department proved just cause for Bundy’s dismissal from employment

based on Bundy’s violation of the Policy (as well as his insubordination in refusing

his supervisor’s direction to submit to a drug and alcohol test), this argument fails.

In any event, Owens, the primary case relied on by Bundy, is

distinguishable. There, we held that just cause did not exist to terminate the

employment of a civilian tow truck operator for the Philadelphia Police

Department where there was no dispute that the misconduct occurred while the

employee was off-duty, and the Philadelphia Police Department did not present

any evidence that its standard of conduct for the off-duty conduct of police officers

extended to civilian personnel.

30

As set forth above, here, unlike in Owens, the Streets Department

established the existence of the Policy, its applicability to Bundy, a supervisory-

level City employee who was operating a City-owned vehicle, and the fact that

Bundy violated the Policy (and was insubordinate) by refusing his supervisor’s

direction to submit to a drug and alcohol test. Thus, Owens does not compel the

result Bundy seeks.

Moreover, in City of Philadelphia v. City of Philadelphia Civil

Service Commission (Carter), 895 A.2d 87, 92-93 (Pa. Cmwlth. 2006), we

explained:

In deciding whether a public employer has

established just cause for dismissing a civil service

employee, this Court has identified a number of factors

relevant to this determination. First, the nature of the job

is an important consideration; an employee in a ‘sensitive

position’ may be subject to dismissal if only to avoid the

appearance of impropriety whereas an employee in a

non-sensitive position may not. [Stone] (holding that a

corrections officer was in a ‘highly sensitive’ position).

A second relevant factor is whether the conduct in

question demonstrates a lack of judgment that erodes

confidence in an employee’s character. Commonwealth,

Office of Attorney General v. Colbert, 598 A.2d 344 (Pa.

Cmwlth. 1991) (holding that dismissal for arrest on 40

unpaid parking tickets constituted just cause). A third

factor concerns safety. An employee whose job it is to

protect the safety of others is expected to behave in a

manner consistent with this goal even while off duty.

Doerr v. Pennsylvania Liquor Control Board, 491 A.2d

299, 303 (Pa. Cmwlth. 1985) (loss of service revolver by

Liquor Control Board officer in the course of off-duty

altercation constituted just cause for dismissal). …

31

Here, these factors weigh in favor of the conclusion that the Streets

Department had just cause to dismiss Bundy. As explained above, Bundy was a

supervisor charged with responsibility for 22 employees as well as City vehicles

and property. He was also charged with ensuring employees complied with the

Policy. Bundy’s refusal to submit to drug and alcohol testing after his involvement

in a fatal accident while operating a City-owned motor vehicle and his disregard of

his supervisor’s directive that he undergo such testing showed poor judgment that

eroded the Streets Department’s confidence in Bundy. Additionally, Bundy’s

violation of the Policy obviously raised concerns over his ability to safely utilize

City property and properly supervise employees.

C. Nexus

1. Contentions

As a final issue, Bundy argues the Commission and the trial court

erred by upholding his termination where no evidence was presented of a nexus

between Bundy’s ability to perform his job and his failure to submit to a voluntary

drug test after an off-duty accident.

Bundy asserts that in Civil Service Commission v. Poles, 573 A.2d

1169 (Pa. Cmwlth. 1990), a corrections officer was terminated because he

inefficiently performed his assigned duties. In reversing the trial court and

reinstating the Commission’s decision, this Court found substantial evidence

supported a finding of just cause. Specifically, the evidence established: the

corrections officer was assigned to guard high-risk inmates; the facility had

procedures to minimize the risk of inmate escape; the corrections officer did not

follow these procedures; and, his failure to do so led to a fight between officers and

32

inmates as well as the escape of two inmates. As this Court requires, the evidence

there established the misconduct as well as a correlation between the misconduct

and the employee’s professional competency. This Court explained that the

severity of the officer’s negligence cast doubt on his continued service.

Conversely, Bundy asserts, in Owens, this Court engaged in this same

analysis, but found substantial evidence did not support a finding of just cause.

Bundy further argues that in Woods v. State Civil Service Commission, 912 A.2d

803 (Pa. 2006), the Pennsylvania Supreme Court reiterated the well-established

rule requiring a nexus between conduct and ability after engaging in a similar

analysis.

Bundy maintains the requisite connection between the alleged

misconduct and fitness for continued employment is even more attenuated here

than in Owens and Woods. He argues the City bore the burden to present evidence

establishing he was unfit for continued employment because his conduct affected

his job performance. He contends that connection was not made. Bundy asserts

that there was one witness who might have been able to make this connection,

Lorenz. Although he spent a significant amount of time recounting the night of the

accident, Bundy argues, Lorenz did not speak at all to Bundy’s job responsibilities

or how his conduct was remotely related to or affected his ability to perform his

job. He also made no mention of any impact Bundy’s conduct had on the Streets

Department or the City. To the contrary, Lorenz testified Bundy was “a good

worker . . . [and] made the best effort to do the job the best he could.” N.T. at 212.

Bundy contends that, as this Court consistently holds, just cause for dismissal must

33

be job-related and rationally touch on ability and competency. Here, he asserts

there is no evidence that the cause of his dismissal was either job-related or

rationally touched on his ability and competency.

2. Analysis

Again, we reject Bundy’s argument. As stated above, the Streets

Department established the existence of the Policy, its applicability to Bundy, a

supervisory-level City employee who was operating a City-owned vehicle, and that

Bundy violated the Policy (and was insubordinate) when he refused his

supervisor’s direction to submit to a drug and alcohol test after an accident in

which he struck and killed a pedestrian. Thus, the Commission properly

determined the Streets Department proved just cause for Bundy’s dismissal from

employment.

Further, as explained above, Owens, relied on by Bundy, is

distinguishable. Similarly, Woods, also relied on by Bundy, is distinguishable.

There, the Supreme Court held that the public employer, a juvenile detention

center, did not prove just cause to terminate one of its counselors, based solely on

the counselor’s off-duty arrest for perjury and false swearing, which were

unrelated to his employment, and upon which the employee was not convicted at

the time of his dismissal. In so doing, the Supreme Court stated:

While [the employee’s] arrest may have warranted

suspension, we disagree that his arrest alone, on perjury

and false swearing charges, established just cause for

removal. [The employee’s] arrest alone did not rationally

and logically touch upon his competency and ability to

perform his job as to warrant dismissal … and therefore

did not provide just cause for removal. While the

34

[c]enter observes that [the employee] occupied a position

requiring trust and integrity, his arrest alone, albeit on

crimen falsi charges, failed to demonstrate that his

trustworthiness or integrity had been compromised. The

[employer] raises concerns about the damage to the

reputation and credibility of the institution occasioned by

[the employee’s] arrest. However, just cause for removal

must be related to the employee’s competency and ability

to perform his job, or arise from conduct rendering him

unfit for the position he occupies. Injury to the

reputation of the institution does not meet these criteria.

On the same grounds, we decline to adopt a per se rule

that the ‘appearance of impropriety’ by an employee in

[a] ‘highly sensitive [position]’ provides just cause to

warrant dismissal.

Woods, 912 A.2d at 809.

Here, unlike in Woods, we are not confronted with an employee’s off-

duty arrest (prior to conviction) as the asserted basis for dismissal. Rather, in this

case, the Streets Department established the existence of the Policy, its

applicability to Bundy, a supervisor who was operating a City-owned vehicle, and

Bundy’s violation of the Policy (and insubordination) based on his disregard of his

supervisor’s directive that he submit to a drug and alcohol test after an accident

that resulted in a fatality. As explained above, Bundy’s refusal to submit to testing

after his involvement in a fatal accident while operating a City-owned motor

vehicle and his disregard of his supervisor’s directive that he undergo such testing

showed poor judgment.

In addition, Bundy’s violation of the Policy clearly raised concerns

over his ability to safely utilize City vehicles and property and to appropriately

supervise employees in light of the fact that he violated the Policy, which he was

35

charged with enforcing in his capacity as a supervisor. Thus, Bundy’s misconduct

rationally and logically touches upon his competency and ability to properly

perform his job. In other words, a nexus exists between Bundy’s misconduct and

his ability to execute his job duties. As such, we discern no error in the

Commission’s determination that just cause existed for Bundy’s dismissal from

employment based on the facts presented here.

For all the foregoing reasons, we affirm.

ROBERT SIMPSON, Judge

36

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gregory Bundy, :

Appellant :

:

v. : No. 436 C.D. 2016

:

City of Philadelphia Civil :

Service Commission, :

ORDER

AND NOW, this 9th day of March, 2017, the order of the Court of

Common Pleas of Philadelphia County is AFFIRMED.

ROBERT SIMPSON, Judge