Opinion
Argued September 16, 1977
October 4, 1977.
Civil service — Due process — Notice of charges — Fraud — Negligence — Demotion — Suspension — Good cause for investigation.
1. Due process requires that notice be given an accused of charges against him. [103]
2. A classified employe is denied due process when his demotion is upheld by the State Civil Service Commission on the basis of evidence of negligence and incompetence when the charges brought against the employe referred only to fraud which involves totally different elements than negligence or incompetence and when no evidence was produced which could support a demotion for fraud. [103-4]
3. Where good cause exists to justify an investigation into irregularities involving the work of a classified employe, the employe is properly suspended during the pendency of the investigation although the investigation centering on charges of fraud revealed no fraud. [104]
Argued September 16, 1977, before Judges CRUMLISH, JR., WILKINSON, JR. and ROGERS, sitting as a panel of three.
Appeal, No. 1791 C.D. 1976, from the Order of the State Civil Service Commission in case of Erma J. Jacobs v. Delaware County Board of Assistance, Department of Public Welfare, No. 1856.
Suspension and demotion of classified employe by appointing authority appealed by the employe to the State Civil Service Commission. Appeal denied. Employe filed petition for review with the Commonwealth Court of Pennsylvania. Held: Affirmed in part and reversed in part. Case remanded.
Stephen A. Sheller, with him Bruce M. Ludwig, and Sheller Chaikin, for petitioner.
Robert E. Kelly, Assistant Attorney General, with him Lynne M. Mountz, Assistant Attorney General, and Robert P. Kane, Attorney General, for respondent.
This appeal arises from an order of the State Civil Service Commission (Commission) upholding appellant's suspension and demotion. We affirm in part and reverse in part.
Appellant, a classified employee, was employed by the Delaware County Board of Assistance as an Income Maintenance Supervisor, regular status. By letter dated February 18, 1976, appellant received notice that she was being suspended from her position during the completion of an investigation into suspected fraud. By letter dated March 12, 1976, appellant received notice that her suspension was being terminated as of March 22, 1976, and that because of fraud she was being demoted to the position of Income Maintenance Worker, II, regular status. Appellant timely appealed her suspension and demotion and a hearing was held before the Commission on March 30, 1976. The Commission found that while there was no evidence of fraud, appellant had mishandled six cases resulting in overpayments to assistance recipients. The Commission, therefore, upheld both the suspension and demotion on the grounds that appellant was "careless, negligent, and incompetent." This appeal followed.
At issue is whether appellant's demotion for incompetency and negligence can be upheld when appellant was charged and tried only for fraud. We believe not. It is elemental that due process requires that notice be given to an accused of the charges pending against him. "[F]or such notice to be adequate, it must at the very least contain a sufficient listing and explanation of any charges so that the individual involved can know against what charges he must defend himself if he can." McClelland v. State Civil Service Commission, 14 Pa. Commw. 339, 343, 322 A.2d 133, 136 (1974). (Citation omitted.) In this case, neither before nor during the trial was appellant on notice that she need defend herself against charges of negligence and incompetence. We cannot agree with the appointing authority that because appellant was informed of the circumstances which were to form the basis of the charges of fraud, that she was also informed of the charge of negligence. The elements of fraud are so different from the elements of negligence that notice of one charge does not give notice of the other. For this reason we cannot analogize with criminal law and consider negligence a "lesser included offense."
The issues in this case are similar to those decided in Straw v. Pennsylvania Human Relations Commission, 10 Pa. Commw. 99, 308 A.2d 619 (1973). There, the defendant was charged with violating § 5(h)(1) of the Pennsylvania Human Relations Act, Act of October 27, 1955, P.L. 744, as amended, 43 P. S. § 955(h)(1). The Human Relations Commission found that the defendant not only violated § 5(h)(1), but in addition, violated § 5(h)(6). This Court ruled that because the defendant "was not put on notice that he was also being charged with the violation of Section 5(h)(6) of the Act, the Commission committed error in concluding that he was also in violation of that section." Id. at 104, 308 A.2d at 621. Just as a defendant cannot be convicted of charges in addition to those she has notice of, here we cannot uphold appellant's demotion on the basis of charges instead of those she had notice of. We must, therefore, reverse appellant's demotion and remand for a hearing, with proper notice given, on the charges of incompetence and negligence.
We reach a different result in regard to appellant's suspension, however. The fact that the Commission did not find that appellant had committed fraud does not make a suspension during the pendency of an investigation erroneous when good cause exists to justify an investigation. Harp v. Pennsylvania Liquor Control Board, 28 Pa. Commw. 318, 368 A.2d 846 (1977). The irregularities in appellant's work justified an investigation and suspension.
Accordingly, we will enter the following
ORDER
NOW, October 4, 1977, the order of the State Civil Service Commission, Appeal No. 1856, dated September 17, 1976, insofar as it dismisses the appeal of appellant's suspension, is affirmed. Insofar as the order dismisses the appeal of appellant's demotion it is reversed and the case is remanded for a hearing on the issues of incompetence and negligence. Prior to this hearing, the State Civil Service Commission shall direct the appointing authority to supply appellant with adequate notice of the reasons for her demotion. Pending the adjudication of such hearing by the State Civil Service Commission, appellant's suspension of February 18, 1976, shall be reinstated, unless appellant chooses to continue in employment as an Income Maintenance Worker II, regular status, without prejudice to her appeal before the Commission, during such time.