due process requires that public employee be given pretermination opportunity to respond to dismissal together with a posttermination hearing
How later courts described this case
- due process requires that public employee be given pretermination opportunity to respond to dismissal together with a posttermination hearing
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael Cook, :
Appellant :
:
v. : No. 1684 C.D. 2019
: Argued: December 7, 2020
City of Philadelphia Civil Service :
Commission :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION
BY PRESIDENT JUDGE LEAVITT FILED: February 5, 2021
Michael Cook (Cook) appeals an order of the Court of Common Pleas
of Philadelphia County (trial court) dismissing his challenge to the City of
Philadelphia’s failure to give him notice before removing his name from the 2012
list of eligible police officer candidates. The trial court held that the City’s action
was not an adjudication subject to judicial review because he did not have a property
interest in prospective employment with the City. Accordingly, the City’s failure to
provide Cook an opportunity to contest the request to remove him from the eligibility
list, as required by the City’s regulation, was not actionable. Cook contends that the
trial court erred because he has a property interest in fair access to public
employment, and the deprivation of that interest is subject to judicial review under
the Local Agency Law.2 We reverse the trial court and remand for a hearing.
1
This case was assigned to the opinion writer before January 4, 2021, when Judge Leavitt
completed her term as President Judge.
2
2 Pa. C.S. §§551-555, 751-754.
Background
In 2012, Cook applied for an officer position with the Philadelphia
Police Department and, on the basis of his training and written examination, was
placed on a list of eligible candidates by the City’s Office of Human Resources. On
May 6, 2013, however, the City advised Cook that because of his score on a
psychological evaluation, he would “not be given any further consideration for
appointment to [the] position.” Reproduced Record at 51a (R.R. __). 3 Cook
promptly appealed to the City’s Office of Human Resources.
When Cook received no response to his appeal, he filed a mandamus
action to compel the Director of Human Resources to render a decision. See Cook
v. City of Philadelphia (C.C.P. Phila. No. 160503837, filed November 15, 2013).
On September 8, 2016, the Office of Human Resources rendered a decision. It
explained
that the evidence or information provided by you was insufficient
to establish that the facts relied on in making the determination
that you failed the psychological evaluation were incomplete,
[or] not true, or that an error was made in reaching this
determination, any request(s) that you believe are pending
disposition by the City[] for the restoration of your name to the
eligible list for Police Officer Recruit are denied.
3
State law requires municipal police officers to undergo a psychological evaluation. A regulation
of the Municipal Police Officers’ Education and Training Commission states:
(a) Except as provided in subsection (b), persons who are to be employed as police
officers by police departments within this Commonwealth from December 21,
1996, shall:
***
(7) Be personally examined by a Pennsylvania licensed psychologist
and found to be psychologically capable to exercise appropriate
judgment or restraint in performing the duties of a police officer….
37 Pa. Code §203.11(a)(7). Cook received a score of 7.5 but needed a score of 8.0 to pass.
2
R.R. 54a. Accordingly, the Office of Human Resources did not reinstate Cook to
the list of eligible candidates.
Cook appealed to the trial court. Cook challenged the credentials of the
psychologist who conducted the exam and the method used to calculate his score.
Further, although the City’s Personnel Manual gave him a right to request a second
evaluation, he was not informed of this opportunity. Finally, Cook argued that the
City failed to give him notice of the Police Department’s request to remove him from
the eligibility list, as required by City Civil Service Regulation 10.0943, and,
therefore, deprived him of the opportunity to contest that request.
The trial court issued a scheduling order requiring the “[a]gency subject
to this appeal” to file its record electronically. Trial Court Order, 11/17/2016. The
City responded that Cook was appealing a decision of the City’s Office of Human
Resources, which had not held a hearing and, thus, had no administrative hearing
record to file.
On January 25, 2017, Cook filed a motion for extraordinary relief
seeking 120 days to conduct discovery. The trial court directed Cook to file a brief
in support of this motion by February 6, 2017. On February 8, 2017, the trial court
denied Cook’s motion. Thereafter, sua sponte, the trial court dismissed Cook’s
appeal. In its Rule 1925(a)4 opinion, the trial court explained that it dismissed
4
The Pennsylvania Rules of Appellate Procedure provide, in relevant part, as follows:
Except as otherwise prescribed by this rule, upon receipt of the notice of appeal,
the judge who entered the order giving rise to the notice of appeal, if the reasons
for the order do not already appear of record, shall … file of record at least a brief
opinion of the reasons for the order, or for the rulings or other errors complained
of, or shall specify in writing the place in the record where such reasons may be
found.
PA. R.A.P. 1925(a).
3
Cook’s appeal as a sanction for not filing a timely brief in support of his motion for
extraordinary relief. Cook appealed to this Court.
This Court reversed, holding that the trial court erred in dismissing
Cook’s appeal sua sponte. This Court rejected the City’s position that Cook’s appeal
was moot:
First, Cook does not request to have his name returned to an
expired list. His appeal seeks a reevaluation by a professional
who possesses the training and expertise to assess him, using the
standards set forth in the Personnel Manual, and placement of his
name on the current list of eligible candidates….
Cook argues that his psychological evaluation was not
administered or scored by the psychologist in the manner
prescribed by the Personnel Manual. In support of this claim,
Cook states that he filed a complaint with the State Board of
Psychology against Nancy Rosenberg, M.D., the psychologist
that conducted his examination. In response, on January 13,
2017, the Department of State, Bureau of Professional and
Occupational Affairs[,] issued an order to show cause to Dr.
Rosenberg.
Dr. Rosenberg entered into a consent decree with the Bureau of
Professional and Occupational Affairs that was adopted and
approved by the State Board of Psychology on April 24, 2017.
Commonwealth of Pennsylvania, Bureau of Professional and
Occupational Affairs v. Nancy Gail Rosenberg, Psy.D (State
Board of Psychology, Docket No. 0066-63-17, filed April 24,
2017). In the consent decree, Dr. Rosenberg stipulated that she
scored Cook’s evaluation using an outdated version of the Police
Applicant Standardized Interview Format. Further, she rated
Cook’s ability to deal with stress as a 1 on a scale of 1 to 5, which
indicated a pathological problem. Dr. Rosenberg admitted that
the data did not support that score. Dr. Rosenberg agreed to the
following discipline: to cease doing police applicant or risk
assessment evaluations; to receive a public reprimand; to pay a
civil penalty of $5,000; to pay for the costs of investigation; and
to complete 20 hours of remedial education.
4
Cook v. City of Philadelphia Civil Service Commission, 201 A.3d 922, 928-29 (Pa.
Cmwlth. 2019) (citations omitted). Noting that the merits of Cook’s appeal were
not before the Court, we remanded for further proceedings.
On remand, Cook requested the trial court to conduct an evidentiary
hearing or to remand to the City’s Civil Service Commission for a hearing pursuant
to Section 754(a) of the Local Agency Law, 2 Pa. C.S. §754(a).5 The City opposed
Cook’s request and moved to quash Cook’s appeal.
In support of its motion to quash, the City argued that a candidate’s
removal from the eligibility list is not an adjudication because no candidate has a
property interest in prospective employment. It also argued that Cook’s appeal was
untimely because the City’s failure to inform him of his opportunity for a second
psychological exam occurred in 2013, and he should have appealed that omission
within 30 days, not 3 years later. Finally, it argued that Cook’s appeal was moot
because the 2012 eligibility list had expired.
The trial court denied Cook’s motion for an evidentiary hearing and
granted the City’s motion to quash. It reasoned as follows:
I find that the failure of the [C]ity to abide by its own regulations
does not create a right that would be subject to an adjudication
appeal, but, rather, that such a violation would be more
appropriately remedied by what actually did happen here, which
was the filing of a writ of mandamus to force the [C]ity – to
5
It states, in relevant part, as follows:
(a) Incomplete record.--In the event a full and complete record of the proceedings
before the local agency was not made, the court may hear the appeal de novo, or
may remand the proceedings to the agency for the purpose of making a full and
complete record or for further disposition in accordance with the order of the court.
2 Pa. C.S. §754(a) (emphasis added).
5
comply with its own rules…. Second, I’ll find that the appeal is
moot because there’s no available remedy….
Hearing Transcript (H.T.), 10/25/2019, at 14 (emphasis added). On November 12,
2019, Cook appealed to this Court.
In its Rule 1925(a) opinion, the trial court offered two reasons for its
decision. First, the City’s actions did not constitute an adjudication because “an
applicant for public employment has no property right in the prospective
employment.” Trial Court 1925(a) op., 5/19/2020, at 4. Second, Cook’s appeal was
moot because even if Cook succeeded on the merits, “there can be no extension of
an eligibility list either by agreement or by court order beyond the two-year statutory
life span.” Id. at 5.
Appeal
On appeal, Cook asserts that the trial court erred in holding that the
City’s actions are not subject to judicial review. Cook acknowledges that he does
not have a property interest in prospective employment with the City but contends
that his appeal concerns “fair access to a public employment position.” Cook Brief
at 25. The City’s Personnel Manual and City Civil Service Regulation 10.0943,
which required the Police Department to notify Cook before his name could be
removed from the eligibility list, guarantee candidates fair access to public
employment. Cook explains as follows:
When [the City] chose not to follow its policies, the [C]ity made
a decision, determination or ruling that affected Cook’s personal
or property rights and so is an appealable adjudication under the
[Local Agency Law]. The trial court abused its discretion when
it determined that Cook’s appeal was from the City’s decision
not to hire him as a police officer and not from the City’s refusal
to provide the fair hiring process required by its policies.
6
Cook Brief at 27-28. Cook also contends his appeal is not moot, as held by the trial
court. Because eligibility lists last from one to two years, there is insufficient time
to complete litigation, including appellate review, before the expiration of any
eligibility list. The City’s conduct is capable of repetition and likely to escape review
and, therefore, presents an exception to mootness.
The City offers four responses. First, the Personnel Manual and City
Civil Service Regulation 10.0943 cannot be considered by this Court because they
are not part of any agency or trial court record. The record of this case consists
solely of the two decisions of the City that total three pages. Second, Cook’s appeal
is untimely. The City’s May 6, 2013, letter informing Cook that he would not be
given further consideration did not offer him a second psychological evaluation, and
Cook did not challenge this specific omission within 30 days.6 Third, the September
8, 2016, decision by the City’s Office of Human Resources to dismiss Cook’s appeal
was not an adjudication because it did not affect a protected property interest.
Fourth, Cook’s appeal is moot because the 2012 eligibility list has expired.
Eligibility lists last one to two years and cannot be extended by court order. There
is no exception to mootness that applies here.
Analysis
I.
We begin with the City’s procedural claims. It asserts, first, that
because Cook’s appeal is based on documents not of record, there is nothing for this
Court to review. “It is black letter law that a statutory appeal record consists solely
of that which is part of the agency record….” City Brief at 19 (emphasis in original).
6
Section 5571 of the Judicial Code provides, in relevant part, that “an appeal from a tribunal or
other government unit to a court … must be commenced within 30 days after the entry of the order
from which the appeal is taken, in the case of an interlocutory or final order.” 42 Pa. C.S. §5571.
7
The issue before this Court is whether the trial court erred in quashing
Cook’s appeal for the stated reason that the City’s failure to abide by its own
regulation or policy manual did not constitute an adjudication. “A decision to grant
or deny a motion to quash an appeal is a question of law within this Court’s scope
of review.” Society Created to Reduce Urban Blight (SCRUB) v. Zoning Hearing
Board of Adjustment of the City of Philadelphia, 951 A.2d 398, 401 n.8 (Pa. Cmwlth.
2008). In deciding a question of law, our scope of review is plenary and standard of
review is de novo. Walnut Street Associates, Inc. v. Brokerage Concepts, Inc., 20
A.3d 468, 474 (Pa. 2011). The question here is whether Cook’s appeal stated a
claim, not whether he presented evidence to support it. To date, there has been no
hearing, and the question is whether one needs to take place.
Although the Personnel Manual may be an evidentiary document, City
Civil Service Regulation 10.0943 is a binding legal norm. The law is evidence of
itself and need not be made part of the evidentiary record to consider the merits of
the trial court’s decision to quash Cook’s appeal.7 We reject the City’s first
procedural claim.
The City next contends that Cook’s appeal was untimely. It concedes
that Cook timely challenged his removal from the eligibility list in 2013 but not,
7
Pennsylvania Rule of Appellate Procedure 1921 states:
The original papers and exhibits filed in the lower court, paper copies of legal
papers filed with the prothonotary by means of electronic filing, the transcript of
proceedings, if any, and a certified copy of the docket entries prepared by the clerk
of the lower court shall constitute the record on appeal in all cases.
PA. R.A.P. 1921 (emphasis added). The pleadings and exhibits filed in the lower court along with
any transcript of proceedings are part of the record. At oral argument, the trial court judge stated:
“I find that the failure of the [C]ity to abide by its own regulations does not create a right that
would be subject to an adjudication [on] appeal….” H.T. at 14.
8
specifically, the failure to offer him a second psychological examination.8 We reject
this contention. The latter question is subsumed in his appeal of his removal from
the eligibility list, which was filed within 30 days of the City’s May 6, 2013, letter
informing Cook that he would not be given further consideration for appointment to
a police officer position.
We turn, then, to the City’s claim that Cook’s appeal is moot. The City
argues that eligibility lists have a short duration so that the information on the
applicants does not become stale. The trial court agreed that “Cook’s appeal is moot
because the relief he is requesting is unavailable.” Trial Court 1925(a) op. at 5.
However, as observed in this Court’s prior decision, Cook does not ask to be restored
to the 2012 list; rather, he seeks a reevaluation by a professional with the requisite
training and expertise and placement of his name on the current list of eligible
candidates. Cook, 201 A.3d at 928. The trial court did not address this requested
relief when it held that this matter is moot and, therefore, erred.
We reject the City’s procedural contentions.
II.
We turn to the substance of Cook’s appeal, which is that the denial of
his right to “fair access to public employment” constituted an adjudication under the
8
Cook attached a copy of the 1994 Personnel Manual to his Notice of Appeal filed with the trial
court. The Personnel Manual includes a sample letter that can be provided to applicants that failed
the psychological examination, which states:
[i]f you wish, you may be evaluated by a different examiner. Contact Mrs. Terry
Lichty at [XXX-XXXX] within 30 days of the date of this letter to make an
appointment for a second evaluation. The results of this second evaluation will be
final. If you do not contact this office within 30 days, your name will be removed
from the active eligible list for this job category, in accordance with Civil Service
Regulations.
R.R. 48a (emphasis added).
9
Local Agency Law. Cook contends that because the City did not abide by its own
Personnel Manual and City Civil Service Regulation 10.0943, it has denied him fair
access to City employment. That denial constitutes an adjudication subject to
judicial review under the Local Agency Law.9
A.
We begin with the City’s assertion that the Personnel Manual was
designed for internal use, and, thus, cannot support Cook’s appeal. The City
explains that the “overall goal of the psychological evaluation process is one of
eliminating … applicants for police officer positions in the [City] who have
psychological problems without adverse impact on gender, race or ethnic
background.” R.R. 13a. The Personnel Manual addresses the psychological
evaluation with respect to the qualifications and training of the evaluators; the
information to be made available to the evaluators; the standardized forms to be used
by the evaluators; and the letters used to notify applicants of the outcome of the
evaluations. There seems little doubt that the Personnel Manual was intended for
internal use.
In Petsinger v. Department of Labor and Industry, Office of Vocational
Rehabilitation, 988 A.2d 748, 757-58 (Pa. Cmwlth. 2010), this Court held that
internal policies do not create enforceable rights in third parties. Likewise, in Sever
v. Department of Environmental Resources, 514 A.2d 656 (Pa. Cmwlth. 1986), this
Court held that executive orders or management directives do not create an
enforceable right unless they implement a law. It may be that the Personnel Manual
9
The law defines an “adjudication” as “[a]ny final order, decree, decision, determination or ruling
by any agency affecting personal or property rights, privileges, immunities, duties, liabilities or
obligations of any or all of the parties to the proceeding in which the adjudication is made.” 2 Pa.
C.S. §101 (emphasis added).
10
implements the statute that created the Municipal Police Officers’ Educational and
Training Commission or the Home Rule Charter provisions on the City’s civil
service system. However, in the absence of an evidentiary record on the Personnel
Manual, we lack a sufficient basis to determine its relevance to Cook’s appeal and
give it no further consideration.
City Civil Service Regulation 10.0943, by contrast, was promulgated
under the City’s Home Rule Charter10 and governs all City employment. It requires
the City’s Personnel Director to “prepare” and “administer the civil service program
under the civil service regulations.” PHILADELPHIA HOME RULE CHARTER §7-100.
Further,
[t]he purpose of the civil service provisions of this charter is to
establish for the City a system of personnel administration based
on merit principles and scientific methods governing the
appointment, promotion, demotion, transfer, lay-off, removal
and discipline of its employees, and other incidents of City
employment. All appointments and promotions to positions in
the civil service shall be made in accordance with the civil
service regulations.
Id. §7-300 (emphasis added). It further mandates that “[a]ll officers and employees
of the City shall comply with and aid in all proper ways in carrying out the civil
service regulations.” Id. §7-302(1).
The Home Rule Charter directs the creation of a classification plan for
the City’s civil service system. Id. §7-400 (emphasis added). This classification
plan covers all positions in the civil service and provides for “[o]pen competitive
10
Pursuant to the Pennsylvania Constitution, PA. CONST. art. IX, §2, the General Assembly
adopted the First Class City Home Rule Act (Home Rule Act), Act of April 21, 1949, P.L. 665, as
amended, 53 P.S. §§13101-13157, and based on this statute, the City adopted a Home Rule Charter
in 1951. Ortiz v. Commonwealth, 655 A.2d 194, 195 (Pa. Cmwlth. 1995).
11
examinations to test the relative fitness of applicants for the respective positions.”
Id. §7-401. Specifically, the Home Rule Charter directs
[t]he establishment of eligible lists for appointment and
promotion, upon which lists shall be placed the names of
successful candidates in the order of their relative excellence in
the respective examinations.… Such lists shall continue in force
for at least one year from the date of their establishment and
thereafter until exhausted or replaced by more recently prepared
lists but in no case longer than two years.
Id. §7-401(f). This provision ensures “[f]airness to persons taking civil service
examinations” and “requires that they shall know their positions on eligibility lists.”
Id. §7-401, Annotation (Subsection (f)) (emphasis added).
The Director of Human Resources maintains “lists of eligibles” for the
“various classes of positions as deemed necessary or desirable to meet the needs of
the service.” PHILADELPHIA CIVIL SERVICE REGULATION §10.01. There is a process
for removing an eligible from the list. Id. §10.09.11 City Civil Service Regulation
10.0943 states as follows:
11
The Director of Human Resources “shall, with notice specified in Regulation 10.0942, remove
the name of an eligible from an eligible list for any of the following reasons:” the eligible did not
respond to the Director’s inquiry about the eligible’s availability for employment; the eligible does
not have the requisite qualifications established by the Director for the position; the eligible
engaged in deception or fraud in the application; the eligible declined to be interviewed; the
eligible failed a pre-employment drug or alcohol screen; or the eligible submitted duplicate
applications for the position. PHILADELPHIA CIVIL SERVICE REGULATION §§10.0921-10.0926. In
these circumstances, the eligible receives an after-the-fact notice of his removal. Id. §10.0942.
Notice is not required where the eligible is appointed to a permanent position; the eligible
is separated from the department and placed on a promotional list; postal authorities indicate that
they cannot locate the ineligible; or the eligible dies. Id. §§10.0911-10.0914.
12
An appointing authority[12] requesting that an eligible be
removed from an eligible list pursuant to Regulation 10.093 must
first provide the eligible notice of the intended request and also
provide the eligible an opportunity to respond in writing. Such
written notification to the eligible shall plainly and clearly state
why the removal action will be requested and advise the eligible
of his opportunity to contest this decision with the appointing
authority. Eligibles will be afforded a minimum of two (2)
business days to respond with information that they believe
renders the appointing authority’s decision erroneous and/or
inappropriate.
Once the appointing authority has provided the eligible candidate
with notice of the intended request to remove his or her name
from the eligible list and an opportunity for the eligible to
respond in writing, the appointing authority may submit the
removal request to the Director of Human Resources. The
removal request must include:
a. documentation supporting the request for removal of
the eligible’s name;
b. a copy of the written notification to the eligible of the
appointing authority’s intent to request the removal of her
or his name from the eligible list; and
c. a copy of the eligible’s response to the appointing
authority or a statement certifying that the eligible failed
to respond to the appointing authority.
Upon receipt of this documentation, the Director of Human
Resources will render a decision regarding the approval or denial
of the appointing authority’s request. The decision of the
Director will be final.
12
The appointing authority is “the employer, supervisor, officer, board, commission, division or
department head empowered by law or ordinance, or by lawfully delegated authority, to make
appointments to positions in the City service or, in cases where delegation is not prohibited by
Charter or law, such other persons as may properly be designated or empowered to act.”
PHILADELPHIA CIVIL SERVICE REGULATION §2.03.
13
Id. §10.0943 (emphasis added).13
In sum, City Civil Service Regulation 10.0943 requires the appointing
authority to “provide the eligible notice of the intended request” to remove the
eligible from the list and to “provide the eligible an opportunity to respond in
writing.” Id. §10.0943. The response may cause the appointing authority to
reconsider its request. On the other hand, where the appointing authority decides to
proceed with its removal request, it must provide the Director of Human Resources
with, inter alia, a copy of its written notice to the eligible and the eligible’s response.
The Director makes a decision on the basis of this documentation.
13
City Civil Service Regulation 10.093 further provides:
Upon satisfaction of the requirements of Regulation 10.0943 and upon the written
request of an appointing authority, the Director may, at his or her discretion,
remove the name of an eligible from an eligible list for any of the following reasons:
10.0931 - Felony or misdemeanor convictions in this state or elsewhere which relate
to the applicant’s suitability in such a way as to preclude them from employment
in the position for which they applied and/or are being considered.
10.0932 - Dismissal from the public service or private employment for inefficiency,
delinquency or misconduct.
10.0933 - Previous work performance in either public or private employment found
to have been unsatisfactory as to efficiency, delinquency or conduct.
10.0935 - Information revealed during the pre-employment background
investigation that indicates that the applicant is unsuitable for appointment to the
position for which they applied and/or are being considered.
10.0936 - Disability that prevents the eligible, with or without a reasonable
accommodation, from satisfactorily carrying on the duties of the position.
10.0937 - Failure to pass an evaluation of fitness for duty for the classes of Police
Officer Recruit, Police Officer 1, Deputy Sheriff Officer, Deputy Sheriff Officer
Recruit or Correctional Officer.
10.0938 - Practice or attempt to practice any deception or fraud in his or her
declarations to the appointing authority in securing employment.
PHILADELPHIA CIVIL SERVICE REGULATION §10.093 (emphasis added).
14
This Court has had occasion to consider the removal of candidates from
civil service eligibility lists or promotion opportunities, in the context of both state
and local government. This precedent is directly relevant to the question of whether
the Home Rule Charter and City Civil Service Regulation 10.0943 have created a
property interest in fair access to public employment, as contended by Cook. Both
parties cite this precedent to support their respective positions.
Barrett v. Ross Township Civil Service Commission, 55 A.3d 550 (Pa.
Cmwlth. 2012), concerned the eligibility of police officers to take the promotional
examination for the position of police lieutenant. In their examination applications,
the officers disclosed that they had each received a disciplinary letter but explained
that the letter did not constitute a formal reprimand that would bar a promotion. In
support, the officers provided a written statement from the township’s solicitor to
that effect. After an evidentiary hearing, the township’s civil service commission
concluded that the letters barred the officers from sitting for the examination. The
trial court reversed, and this Court affirmed.
In holding that the officers had a property interest in taking the
promotional examination, this Court explained as follows:
The Officers’ property interest in taking the examination can be
confirmed twice. First, Section 635(a) of the First Class
Township Code, 53 P.S. §55635(a),[14] provides, in relevant part,
that “all police promotion examinations shall be open to all
applicants who have the minimum qualifications required by the
rules and regulations.” 53 P.S. §55635 (emphasis added).
Second, Section 4.7 of the Rules of the Ross Township Civil
Service Commission provides for a right to a hearing if the
Commission denies an individual the opportunity to sit for a
promotional examination. Further, Section 4.7 provides that this
14
Act of June 24, 1931, P.L. 1206, added by the Act of May 27, 1949, P.L. 1955, as amended.
15
hearing must follow the procedures set forth in the Local Agency
Law. In sum, the applicable statute and Commission rules
support the conclusion that the Officers had a protected property
interest at stake when they were denied the opportunity to sit for
a promotional examination.
Id. at 556-57 (brackets and footnotes omitted). In Barrett, this Court observed that
the Court’s prior holding in Marvel v. Dalrymple, 393 A.2d 494 (Pa. Cmwlth. 1978),
also suggested that “there is a property interest in having fair access to a public
employment position.” Barrett, 55 A.3d at 558.
Pennsylvania Game Commission v. State Civil Service Commission
(Taccone), 789 A.2d 839 (Pa. Cmwlth. 2002), concerned two candidates on the
eligibility list for a game warden position. The Game Commission requested that
the State Civil Service Commission remove the candidates’ names from the list
because it considered them unsuitable.15 The candidates contested the request in a
process that involved the submission of written statements and oral argument by
both sides. The State Civil Service Commission found in favor of the candidates and
denied the Game Commission’s request.
The Game Commission appealed, asserting, inter alia, that the State
Civil Service Commission had abused its discretion by not granting it a full
evidentiary hearing on its removal request. This Court affirmed the State Civil
Service Commission. We held that the State Civil Service Commission had the
15
The Game Commission sought the removal of the first candidate for having drawn his side arm
too many times while serving as a police officer for the City of Erie. It sought removal of the
second candidate because he had killed a deer with a ratchet after the deer collided with his truck,
breaking its neck and leg. Before the Civil Service Commission, the first candidate showed that
his record as a police officer was spotless; he did not draw his side arm excessively given the 1,175
calls he was dispatched to handle; and he had never discharged his side arm. The other candidate
explained that he responded “humanely” to the dying deer and while he did not report the deer’s
death to the Game Commission, he did call the police. The Civil Service Commission rejected the
Game Commission’s conclusion that neither candidate was suitable.
16
discretion to decide what kind of hearing to hold, and it did not abuse its discretion
in denying the Game Commission’s demand for an evidentiary hearing. We
concluded that the candidates had a “protected property right in being placed on the
[e]ligible [l]ist,” Taccone, 789 A.2d at 845, but the Game Commission “had no
protected interest” in keeping the candidates off the list. Id. at 847.
Mansfield v. State Civil Service Commission (Department of Labor and
Industry), 68 A.3d 1062 (Pa. Cmwlth. 2013), concerned a candidate’s contest of the
Department of Labor and Industry’s request to remove him from an eligibility list.
The Department sought this removal because the candidate had been dismissed for
unsatisfactory performance during his probationary period of employment at the
Department. The State Civil Service Commission granted the candidate’s contest,
in part. It removed his name from the list of positions in Philadelphia (where he had
worked prior to discharge) but not in other locations. It limited his removal to one
year for one position and three years for another position.
In both Taccone and Mansfield, it was the State Civil Service
Commission that had the authority to remove a prospective employee from the
eligibility list upon request by the state agency. Further, the applicable management
directive gave the State Civil Service Commission the sole discretion to decide
whether to hold an evidentiary hearing. In both cases, the State Civil Service
Commission limited the “hearing” to the submission of written position papers and
oral argument. In Taccone, we rejected the claim of the Game Commission that it
was entitled to a full evidentiary hearing, and in Mansfield we rejected the identical
claim of the candidate. We explained as follows:
An individual’s appearance on an eligibility list is a matter for
the Commission and the appointing authority. The
[m]anagement [d]irective, not the Administrative Agency Law,
17
defines the parameters for the entire process, and it does not itself
confer rights on prospective employees. Mansfield had no
constitutional or statutory right to remain on the Commission’s
list of eligible employees. Likewise, he had no right to an
evidentiary hearing. The seven and one-half minutes of
argument he received was by grace of the Commission. The
Commission’s decision to remove Mansfield from the eligibility
list after that argument was not an adjudication subject to this
Court’s review.
Mansfield, 68 A.3d at 1067. Stated otherwise, Mansfield clarified that the
Administrative Agency Law did not apply to a proceeding before the Commission
on the removal of a candidate’s name from an eligibility list.
Frankowski v. State Civil Service Commission (Department of Labor
and Industry), 68 A.3d 1020 (Pa. Cmwlth. 2013), also concerned the removal of a
candidate’s name from an eligibility list. Frankowski received the same type of
hearing from the State Civil Service Commission on the appointing authority’s
request to remove him from the eligibility list as the candidates in Taccone and
Mansfield. The Department of Labor and Industry sought Frankowski’s removal
because of his child pornography convictions. We held that no further process would
be granted Frankowski and dismissed his appeal.
These cases establish that there is a property interest in fair access to
public employment. In Barrett, the source of that interest was a rule of the
township’s civil service commission that “provides for a right to a hearing if the
Commission denies an individual the opportunity to sit for a promotional
examination.” Barrett, 55 A.3d at 557. Fair access to public employment is an
interest that is separate and distinct from actual employment. There is no property
interest in prospective employment, as the City correctly argues. Thus, an employee
discharged during his probationary period is not entitled to a hearing.
18
The extent of the hearing required by fair access to public employment
need not be an on-the-record evidentiary hearing. As Taccone and Mansfield
explain, the scope of the hearing is committed to the discretion of the State Civil
Service Commission where the matter concerned a request by the appointing
authority to remove a candidate from the eligibility list. Not every recognized
property interest is entitled to the same degree of process. Judge Friendly explains
that “[t]he required degree of procedural safeguards varies directly with the
importance of the private interest affected ….” Hon. Henry J. Friendly, Some Kind
of Hearing, 123 U. PA. L. REV. 1267, 1278 (1975). The more severe the government
action, the more process is needed and the less severe the action, “fewer and fewer
requirements” are warranted. Id. The process followed by the State Civil Service
Commission in eligibility cases is consistent with the nature of the property interest
in fair access to public employment, which interest is far less than the property
interest in holding public employment. See, e.g., Cleveland Board of Education v.
Loudermill, 470 U.S. 532 (1985) (due process requires that public employee be
given pretermination opportunity to respond to dismissal together with a
posttermination hearing). Local governments are free to set up their own procedure
and provide more process then the minimum required. In Barrett, for example, the
applicable rules of the township’s civil service commission provided for a full
evidentiary hearing.
Here, the City has adopted a process similar to that used by the State
Civil Service Commission. City Civil Service Regulation 10.0943 states that the
appointing authority requesting that an eligible be removed from an eligible list
pursuant to Regulation 10.093 must first provide the eligible notice of the intended
request and give the eligible an opportunity to respond in writing. PHILADELPHIA
19
CIVIL SERVICE REGULATION §10.0943. City Civil Service Regulation 10.0943 is
firmly grounded in the City’s Home Rule Charter.16 We conclude and, therefore,
hold, that candidates for employment with the City have a protected property interest
in fair access to this employment, as established in the City’s Home Rule Charter
and City Civil Service Regulation 10.0943.
The City contends that its alleged failure to follow Regulation 10.0943
is not subject to review under the Local Agency Law. In support, it directs this
Court to its holdings in Mansfield and Frankowski, which held that the
Administrative Agency Law did not apply to eligibility list proceedings before the
State Civil Service Commission. These rulings do not advance the City’s position.
The candidates in each case received “some kind of hearing” before their names
were removed. They submitted written statements and made oral argument. Indeed,
on this basis, Mansfield’s contest was partially granted; he was not permanently
removed from all lists, as requested by the Department of Labor and Industry. By
contrast, Cook asserts that he received no notice of the Police Department’s request
to remove him from the eligible list or an opportunity to contest the request, as
required by the City’s regulation. Mansfield and Frankowski did not address that
situation or suggest that the appointing authority was free to remove a candidate
from the eligibility list without following the process before the City’s Civil Service
Commission.
16
At oral argument, the City asserted that City Civil Service Regulation 10.0942 governed Cook’s
removal, which provides for after-the-fact notice where removal from the eligible list is mandatory
under City Civil Service Regulation 10.092. See supra note 11. The City did not raise this issue
in its brief with this Court, and it is waived. In any case, Civil Service Regulation 10.092 does not
list failure to pass a psychological examination, which the City asserts was the cause of Cook’s
removal from the eligible list. City Brief at 5 (“Cook took and failed the psychological
examination.”).
20
We reject the City’s contention that Cook has no remedy where, as here,
it is alleged that the City did not follow City Civil Service Regulation 10.0943, which
is binding on the City. It is well established that “[w]hen an agency’s decision or
refusal to act leaves a complainant with no other forum in which to assert his or her
rights, privileges or immunities, the agency’s act is an adjudication.” Giant Food
Stores, LLC v. Penn Township, 167 A.3d 252, 260 (Pa. Cmwlth. 2017). The Local
Agency Law “was enacted to provide a forum for the enforcement of statutory rights
where no procedure otherwise exists.” Bray v. McKeesport Housing Authority, 114
A.3d 442, 454 (Pa. Cmwlth. 2015) (citing Guthrie v. Borough of Wilkinsburg, 478
A.2d 1279, 1283 (Pa. 1984)). In McCormick v. Dunkard Valley Joint Municipal
Authority, 218 A.3d 528, 532 (Pa. Cmwlth. 2019), this Court held that where the
applicable ordinance does not provide a hearing, the Local Agency Law provides
the default hearing mechanism. See also 36 STANDARD PENNSYLVANIA PRACTICE
166:306 (2020 ed.) (“The Local Agency Law establishes a uniform and
comprehensive method of appeal from Local Agency adjudications, which applies
even if the local enabling legislation makes no provision for appeal from such
adjudications, or actually prohibits an appeal.”).
Cook claims that the City ignored City Civil Service Regulation
10.0943 and the Personnel Manual, and in doing so denied him his property interest
in fair access to public employment. This denial of any process on his removal from
the eligibility list constitutes an adjudication subject to judicial review. Giant Food
Stores, LLC, 167 A.3d at 260. Because the City Civil Service Regulations do not
provide for a hearing to address the case where the City ignores its own regulation,
the Local Agency Law provides, by default, the hearing procedure. Therefore, we
agree with Cook’s claim that the City’s deprivation of Cook’s fair access to City
21
employment constitutes an adjudication, which is subject to review under the Local
Agency Law. The trial court erred in otherwise holding.
Conclusion
For these reasons, we hold that Cook has a protected property interest
in fair access to public employment, which is established by the City’s Home Rule
Charter and Civil Service Regulations. We reverse the trial court’s dismissal of
Cook’s appeal and remand the matter for further proceedings. On remand, Cook can
present evidence on his claim that he was denied the minimal process required by
City Civil Service Regulation 10.0943 and the Personnel Manual before being
removed from the eligible list. If Cook proves his case, the trial court shall determine
the appropriate relief.
_____________________________________
MARY HANNAH LEAVITT, President Judge
22
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael Cook, :
Appellant :
:
v. : No. 1684 C.D. 2019
:
City of Philadelphia Civil Service :
Commission :
ORDER
AND NOW, this 5th day of February, 2021, the order of the Court of
Common Pleas of Philadelphia County (trial court) dated October 25, 2019, is
REVERSED, and this matter is REMANDED to the trial court for a hearing as
provided in the attached opinion.
Jurisdiction relinquished.
_____________________________________
MARY HANNAH LEAVITT, President Judge