              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Darrell J. Campbell,                    :
                           Petitioner   :
                                        :
                   v.                   :
                                        :
State Civil Service Commission          :
(Department of Corrections),            :   No. 382 C.D. 2017
                        Respondent      :   Argued: December 7, 2017


BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                 FILED: December 28, 2017

            Darrell J. Campbell (Campbell) petitions this Court for review of the
State Civil Service Commission’s (Commission) March 3, 2017 adjudication and
order (Adjudication) dismissing his appeal challenging the Department of
Corrections’ (Department) termination of his employment from his Corrections
Officer 3 position at State Correctional Institution at Rockview (Rockview). There
are five issues before the Court: (1) whether the Commission’s findings are supported
by substantial evidence; (2) whether the Commission erred by refusing to compel
production of an unredacted pre-disciplinary conference (PDC) synopsis (Synopsis);
(3) whether the Department had just cause to discharge Campbell; (4) whether the
Commission erred by refusing Campbell’s request to compel testimony; and (5)
whether the Commission erred by disregarding mitigation as an optional remedy.
After review, we affirm.
              Campbell began his employment with the Department on December 22,
2006. On July 19, 2015, Campbell was the Lieutenant assigned to Rockview’s
Secure Residential Treatment Unit (SRTU).1 In that capacity, Campbell supervised
Corrections Officers Brian McFee (McFee) and Nathan Heverly (Heverly). On that
date, Campbell entered the dayroom,2 witnessed a confrontation between two inmates
(Incident) and called McFee to the scene. At the time, McFee was in the SRTU
control bubble (Bubble). When McFee arrived, the confrontation was in progress,
and McFee assisted in separating the inmates, restraining one inmate with handcuffs
and escorting him back to his cell. Thereafter, Campbell directed McFee to complete
an incident report (DC-121). McFee did so, and included a statement that he was
hanging up a set of keys when Campbell called him to respond to the confrontation.
McFee submitted the DC-121 to Campbell who directed him to remove the statement
about hanging up the keys because it was either irrelevant or created the appearance
that McFee did not timely respond. McFee removed the statement and resubmitted
the DC-121. During the Department’s subsequent investigation into the July 19,
2015 events, McFee stated that he was hanging up keys when Campbell called him.
              Heverly was also in the Bubble when the Incident occurred. After the
Incident, Campbell also directed Heverly to write a DC-121. In his DC-121, Heverly
wrote that the Incident involved an unplanned use of force and described the Incident
as “inmate on inmate” because two inmates were fighting. Another Corrections
Officer, Craig Rutherford (Rutherford), the SRTU Sergeant on duty at the time of the
Incident, overheard Campbell direct Heverly to change his DC-121 report to describe
that there had been a fight rather than an assault. Rutherford observed Heverly
change his DC-121 and discard the original.                  Rutherford also wrote inmate

       1
          The SRTU is a unit for housing and treating inmates with mental health issues.
       2
          The dayroom is directly outside the control bubble (Bubble). The Bubble is a room for
staff which is “surrounded by glass so that [staff] can see out of the [B]ubble.” Certified Record
(C.R.) Item 1, Notes of Testimony, April 28, 2016 N.T. at 117.
                                                2
misconduct reports for both inmates after gathering information from Campbell and
the other Corrections Officers present during the Incident.
             Corrections Officer Howard Hoover (Hoover) was assigned to
investigate inmate abuse allegations arising from the Incident. Specifically, one of
the inmates involved in the Incident alleged that two Corrections Officers had
slammed his head into the floor while he was being restrained. See Certified Record
(C.R.) Item 1, Notes of Testimony, April 28, 2016 (N.T.) at 115.         During the
investigation, Hoover reviewed the DC-121 reports and noted that they were
unusually short. He interviewed the inmates and all staff involved with the Incident.
On August 13, 2015, Hoover interviewed Heverly, who told him that his original DC-
121 reported that the two inmates were fighting and he placed one inmate on the
ground. Heverly informed Hoover that Campbell had directed him to modify his DC-
121 to state that both inmates were already on the ground and that he merely
handcuffed them. Heverly advised Hoover that he had submitted a modified DC-121.
Hoover also spoke with McFee who informed Hoover that he was hanging up keys
when Campbell called him to the scene of the Incident.
             In addition, Hoover interviewed Campbell. Campbell focused on the
fact that when the Incident occurred he was preparing to respond to another incident.
Hoover also asked about whether a television was inside the Bubble at the time of the
Incident, as reported by one of the inmates. Campbell repeatedly stated that he did
not recall whether a television was in the Bubble at the time of the Incident. At the
end of the interview, Hoover requested Campbell to provide a written statement about
the Incident. Campbell provided the written statement, but Hoover later realized that
the statement did not include any mention of whether a television was present in the
Bubble.   Accordingly, Hoover re-interviewed Campbell so the matter could be
addressed and included in the written statement. Campbell provided a second written
statement acknowledging the presence of a television in the Bubble.
                                           3
            Upon completing his investigation, Hoover determined that the Incident
should have been reported as an inmate-on-inmate assault and an unplanned use of
force, since an inmate was taken to the ground, but Campbell directed staff to omit
that information. Additionally, although Hoover believed that Campbell responded
immediately upon discovering the Incident, he faulted Campbell because staff had not
maintained constant dayroom observation, in violation of Security Post Orders.
            On September 28, 2015, the Department held a PDC attended by Deputy
for Facilities Management Eric Tice (Tice), Major Daniel Baird (Baird) and Human
Resources representative Mandy Confer (Confer). On October 26, 2015, Tice issued
the    Synopsis     to    Rockview       Superintendent      Mark       C.   Garman
(Garman/Superintendent). Campbell retained his duties during the investigation, but
was precluded from supervising the SRTU.
            By December 8, 2015 letter (Letter), the Department notified Campbell
that he was discharged from his position as Corrections Officer 3, regular status,
effective December 9, 2015. The Letter further notified Campbell that, following the
PDC, the Department determined that Campbell had violated the following:

            PA DOC Code of Ethics, B#22
            An employee shall submit any necessary and/or requested
            work[-]related reports in a timely manner and in accordance
            with existing regulations. Reports submitted by employees
            shall be truthful[,] and no employee shall knowingly enter
            or cause to be entered any inaccurate, false, or improper
            information or data, or misrepresent the facts in any
            Department record or report.
            PA DOC Code of Ethics, B#29
            All employees shall comply and cooperate with internal
            investigations conducted under the authority of the
            Department [], and respond to questions completely and
            truthfully[.] Procedure in cases that may result in criminal
            prosecution will include those rights accorded to all citizens
            of the Commonwealth.


                                          4
           Failure to Perform your Job
           Essential functions of a Corrections Officer 3 is to have the
           ability to supervise correctional staff in all work activities,
           exercise care[,] custody and control over inmates,
           effectively communicate verbally and in writing with
           inmates and staff, enforce rules and regulations of the
           Department [] and facility, accurately complete all required
           Department [] forms.
           DC-ADM 801 Section 1(B)(2)
           The DC-141, Part 1 shall be written by either the charging
           staff member or contract service provider who has personal
           knowledge of the rule violation. On an as-needed basis, the
           DC-141, Part 1 may be written by a staff member at the
           direction of a person who has personal knowledge of the
           misconduct; in such cases, the DC-141 must include a
           justification as to why the individual with personal
           knowledge did not write the report.
           DOC Policy 6.3.1 Section 32(E)(4)(d)
           Written reports, using the DC-121, Part 3, Employee
           Report of Extraordinary Occurrence, are required from
           the person who applied the force and from every staff
           member who witnessed or were involved in the incident.
           These reports shall be submitted to the Shift Commander no
           later than the end of the duty day. The report must include
           all of the following information.
           [. . . .]
                 d.) an accurate and complete description of the
                 incident and reasons for deploying force

Reproduced Record (R.R.) at 3a-4a.      In the Letter, the Department specifically
charged:

           [O]n July 19, 2015 you were the Lieutenant that was
           assigned to the SRTU. You stated that you witnessed a
           fight between Inmate HB2679 Williams and Inmate JZ6093
           Dixon and called for assistance. You agreed that you failed
           to perform your job and that you violated DC-ADM 801
           Section 1(B)(2). You also admitted that you did not know
           the policy concerning the SRTU and you were not up-to-
           date on the post orders.


                                         5
             Additionally, your DC-121 misrepresented the facts and
             was not a complete description of the incident and you
             failed to insure that the Officer’s DC-121s were accurate.
             Moreover, you instructed an Officer to change his DC-121
             report to coincide with the other reports. You failed to
             review the reports for completeness and follow-up on the
             incident prior to submitting the reports to the Shift
             Commander. Furthermore, your response concerning a
             [television] in the SRTU Bubble has been inconsistent
             throughout the course of the investigation.
             Your failure to direct the work force and follow proper
             procedures and policies left an inmate severely beaten to
             where he needed emergency outside treatment. Your
             blatant disregard for policy and procedure is unacceptable
             and cannot be tolerated.

R.R. at 4a-5a.
             On December 11, 2015, Campbell appealed to the Commission. The
Commission held a hearing on April 28, 2016.         The Department presented the
testimony of McFee, Heverly, Rutherford, Hoover, Baird and Confer that Campbell
directed subordinates to alter their DC-121 reports, that Rutherford completed the
inmate misconduct forms, and that Campbell failed to perform his duties and
truthfully and completely cooperate in the Department’s investigation. Specifically,
McFee testified that Campbell had directed him to change his DC-121 report to
remove information that McFee was hanging his keys when the Incident occurred.
See N.T. at 36-37. Heverly also stated that Campbell had directed him to change his
DC-121, explaining: “[In] my original report[,] I wrote that there was two inmates
fighting and I placed Inmate Dixon on the ground. I was asked [by Campbell] to
change it to make it as if the inmates were already on the ground and I just walked up
and handcuffed them.” N.T. at 60-61. Rutherford testified that although he had no
involvement in the Incident, he completed the inmate misconduct forms based on
information provided by Campbell and the other Corrections Officers. See N.T. at
82-83.

                                          6
            Hoover stated as a result of his investigation he concluded:

            that this [I]ncident should have been --- one, it should have
            been reported as an inmate-on-[i]nmate assault. Two, it
            should have been reported as an unplanned use of force,
            because the inmate was taken to the ground. And he wasn’t
            --- he didn’t put his arms behind his back and say, [h]ere,
            put the handcuffs on me.
            And they didn’t say, [b]reak up the fight; and the inmates
            didn’t stand back and break up the fight. They used force to
            break up the inmates.
            What the true, accurate account of the situation is, I’m not
            sure we still know, because not everybody was truthful
            throughout the investigation and weren’t truthful in their
            initial reports.
            I concluded that there were violations by several staff
            members and also that there was a lack of supervision on
            the unit and direction [by Campbell].
            ....
            [Campbell] had nobody assigned to directly observe the
            inmates in the dayroom area. To this day, nobody can
            explain how one inmate got out of a secure holding cell,
            whether he got . . . out on his own will or whether he was
            pulled out of the cell. The only account of that specifically
            I got from the inmates.

N.T. at 115-116. Baird explained that “[t]he fact that staff members were instructed
to change their [DC-]121s, we found that to be less than truthful.            It was
misrepresented as just a fight and not an unplanned use of force. Obviously, that’s
less than truthful.” N.T. at 188. Finally, Confer testified that she was on the 3-
member PDC panel, and that the panel unanimously substantiated all of the charges,
but did not recommend any specific discipline. See N.T. at 227-228.
            Campbell testified on his own behalf.      He stated that he accurately
reported in his DC-121 what he had witnessed during the Incident.           Campbell
explained that at the time of the Incident, he had just returned from eating.
                                          7
According to Campbell, a medical emergency was reported on the radio, and
Campbell prepared to respond by gathering his radio. He looked up and observed the
Incident. When he discovered the Incident, he thought it was a fight, and yelled out
to other Corrections Officers for assistance. He attempted to review video to learn
more about what had transpired, but there was no video coverage of the Incident. He
contended that the characterization of the Incident as an inmate-on-inmate fight was
accurate based on what he witnessed. He further testified that he described his
observations of the Incident to the other Corrections Officers but did not tell them to
change their reports. See N.T. at 241-243.
             On March 3, 2017, the Commission issued its Adjudication, wherein it
found credible Heverly’s and McFee’s testimony that Campbell directed them to alter
their DC-121 reports.       The Commission also deemed credible that Rutherford
completed the inmate misconduct forms although he was not present during the
Incident. The Commission also declared that Hoover’s and Baird’s testimony was
credible. The Commission concluded: “[Campbell’s] unfamiliarity with post orders,
improper     supervision     of   subordinates,      and    intentional     omissions    and
misrepresentations on the DC-121 reports reflect negatively upon his competence and
ability to perform his job duties.” Commission Adjudication at 19. Accordingly, the
Commission found that the Department had established just cause for Campbell’s
employment termination. Campbell appealed to this Court.3



      3
             Our review of the Commission’s decision is limited to determining
             whether the factual findings are supported by substantial evidence,
             whether an error of law was committed, or whether constitutional
             rights were violated. Whether a civil service employee’s actions
             constitute just cause for removal is a question of law reviewable by
             this [C]ourt.
Dep’t of Transp. v. State Civil Serv. Comm’n (Bocchinfuso), 84 A.3d 779, 783 n.2 (Pa. Cmwlth.
2014) (citation omitted).
                                              8
            Campbell first argues that the Commission’s findings were not supported
by substantial evidence because “[t]he Commission based 37 of its 39 Findings of
Fact[] on [Department] testimony that was thoroughly impeached, discredited and not
credible.” Campbell Br. at 7. Specifically, Campbell argues:

            The only true and consistent account about what happened
            before, during and after the inmate-on-inmate fight at
            [Rockview], on July 19, 2015 – Campbell’s account – was
            not once referenced in the Commission’s []Findings of
            Fact[] in this matter, nor did the Commission discuss or
            even reference or describe Campbell’s largely unchallenged
            testimony as not credible.

Id. In effect, Campbell asserts that the Commission’s decision is not based on
substantial evidence because the Department’s multiple witnesses are obviously
untruthful. Essentially, Campbell contends that inconsistencies and contradictions in
the Department’s witnesses’ testimony are so egregious that the Commission could
not, under any set of circumstances, have relied upon that testimony, and, because it
did so, the Commission erred.       Campbell further argues that the Commission
compounded its error by disregarding his “true and consistent account[.]”           Id.
(Emphasis omitted). We disagree.
            “The Commission is the sole fact finder in civil service cases and has
exclusive authority to assess witness credibility and resolve evidentiary
conflicts.” Pa. Bd. of Prob. & Parole v. State Civil Serv. Comm’n (Manson), 4 A.3d
1106, 1113 (Pa. Cmwlth. 2010) (emphasis added). Further, “[t]he finder of fact is
free to . . . reject contradicted or biased testimony as not credible.” Cambria Cty.
Home & Hosp. v. Dep’t of Pub. Welfare, 907 A.2d 661, 667 (Pa. Cmwlth. 2006).
The trier of fact “must determine the weight to be given conflicting evidence.”
Baker v. Oliver B. Cannon & Sons, Inc., 362 A.2d 1150, 1151 (Pa. Cmwlth. 1976).
Moreover, “[i]t is a well[-]settled principle of appellate review that the hearing body
to whom the testimony is actually presented is in the best position to decide matters
                                          9
of credibility and evidentiary weight due to the ability to observe witnesses
firsthand.” Lewis v. Dep’t of Health & State Civil Serv. Comm’n, 437 A.2d 811, 814
n.7 (Pa. Cmwlth. 1981).            Thus, it is beyond this Court’s role to make factual
findings, evaluate witness credibility, resolve evidentiary conflicts or determine
evidentiary weight. Accordingly, we decline Campbell’s invitation to do so.4 Based
upon a review of the record evidence, we hold that the Commission’s findings were
supported by substantial credible evidence.


       4
           This Court has explained:
                [T]he fact-finder ‘is not required to address each and every allegation
                of a party in its findings, nor is it required to explain why certain
                testimony has been rejected.’ Balshy v. [Pa.] State Police, 988 A.2d
                813, 836 (Pa. Cmwlth. 2010). The pertinent inquiry is whether the . .
                . findings are supported by substantial evidence. Id. ‘The findings
                need only be sufficient to enable the Court to determine the questions
                and ensure the conclusions follow from the facts.’ Id.
Kiskadden v. Pa. Dep’t of Envtl. Prot., 149 A.3d 380, 401 (Pa. Cmwlth. 2016). Notwithstanding,
                this Court may conclude that an adjudicator has capriciously
                disregarded competent evidence when the unsuccessful party below
                has presented ‘overwhelming evidence’ upon which the adjudicator
                could have reached a contrary conclusion, and the adjudicator has not
                satisfactorily addressed that evidence by resolving conflicts in the
                evidence or making credibility determinations that are essential with
                regard to the evidence. Frog, Switch & M[fg.] Co. [v. Pa. Human
                Rels. Comm’n,] 885 A.2d [655,] 667 [(Pa. Cmwlth. 2005).] . . . . In
                other words, where there is strong ‘critical’ evidence that contradicts
                evidence supporting a contrary determination, the adjudicator must
                provide an explanation as to how it made its determination. The
                ultimate question is whether an adjudicator ‘has failed to give a
                proper explanation of overwhelming critical evidence.’ Id. However,
                in Frog, Switch & Manufacturing Co., the Court recognized the
                extremely unusual nature of the adjudicator’s decision, in which ‘each
                and every key finding of causation, [the Human Relations
                Commission] ignored evidence that would have compelled a different
                conclusion.’ Id.
Grenell v. State Civil Serv. Comm’n (Franklin Cty.), 923 A.2d 533, 538-39 (Pa. Cmwlth. 2007). In
the instant matter, the record reveals no such overwhelming contradictory critical evidence.
                                                  10
              Campbell next contends that the Commission erred when it refused to
compel production of the unredacted Synopsis. We agree.
              The Department refused to produce the Synopsis, asserting that the
Synopsis was protected from disclosure under the deliberative process privilege,5 and
because it was not relevant to the proceedings. Campbell filed a motion with the
Commission to compel production.              By April 15, 2016 letter, the Commission
notified the parties:

              A fair summary of [the Department’s] response to
              [Campbell’s] motion indicates the following.            The
              [Department] has already produced to [Campbell’s] counsel
              the entire record of all documents used as a basis for
              [Campbell’s] discipline, except one. After a search was
              made, no emails were found to exist related to [Campbell’s]
              request. The only document withheld by the [Department]
              is based on ‘deliberative process privilege’ a ‘memorandum
              authored at the facility which is simply a synopsis of the
              [pre-disciplinary conference] which contains opinions and
              recommendations, as well as mental impressions.’ The
              [Department] argues [the Synopsis] is both protected by
              privilege and irrelevant because the matter before the
              Commission is a . . . just cause hearing only [under Section



       5
         “The deliberative process privilege permits the government to withhold documents
containing ‘confidential deliberations of law or policymaking, reflecting opinions,
recommendations or advice.’” Commonwealth v. Vartan, 733 A.2d 1258, 1263 (Pa. 1999) (quoting
Redland Soccer Club, Inc. v. Dep’t of the Army of the U.S., 55 F.3d 827, 853 (3d Cir.1995)).
Further,
              [f]or the deliberative process privilege to apply, certain requirements
              must be met. First, the communication must have been made before
              the deliberative process was completed.                 Secondly, the
              communication must be deliberative in character. It must be a direct
              part of the deliberative process in that it makes recommendations or
              expresses opinions on legal or policy matters. Information that is
              purely factual, even if decision-makers used it in their deliberations is
              usually not protected.
Vartan, 733 A.2d at 1264 (citations and quotation marks omitted).
                                                 11
              951(a) of the State Civil Service Act (Act)6] without a
              corresponding discrimination claim.         Therefore, the
              opinions and conclusions of the pre-disciplinary panel
              members with regard to the evidence are irrelevant since the
              [Department] will defend the discipline it actually imposed
              and the Commission will reach its own conclusions
              concerning the evidence.
              To the extent that [the Synopsis] contains a summary of the
              facts and rationale upon which the panel members’ decision
              to recommend discipline for [Campbell] was based, that
              information should be provided to [Campbell’s] counsel.
              The [Department], if it chooses to, can redact from [the
              Synopsis] the specific recommendation for discipline the
              panel made to the Superintendent, if any.

R.R. at 204a-205a.
              Although Campbell contends that the Commission erred by permitting
the Department to redact the Synopsis based on the deliberative process privilege, the
Commission purportedly did not authorize the redaction on that basis. Instead, in an
April 7, 2017 letter denying Campbell’s reconsideration motion, the Commission
explained:

              The Commission’s decision to allow the appointing
              authority to redact the [PDC] panel’s recommendation for
              discipline, while otherwise compelling them to produce for
              you the entire document, was not based on the deliberative
              process privilege. If that had been the basis of our decision,
              the entire document would have been denied to you. The
              Commission allowed the red[a]ction because the [PDC]
              panel’s recommendation was an opinion which the
              Commission did not need to render its decision on this
              appeal. The Commission, made its own determination of
              whether the evidence offered by the [Department] was
              sufficient to provide just cause for [Campbell’s employment
              termination].




       6
         Act of August 5, 1971, P.L. 752, added by Section 27 of the Act of August 27, 1963, P.L.
1257, as amended, 71 P.S. § 741.951(a).
                                               12
C.R. Item No. 6, April 7, 2017 Letter (emphasis added). However, the Commission
erred by allowing the Synopsis to be redacted.            Section 105.14b(b) of the
Commission’s Regulations states, in relevant part: “At the discretion of the
Commission, relevant documents may be obtained from an opposing party prior to
the hearing.” 4 Pa. Code § 105.14b(b).
            Clearly, the Commission had the discretion to determine whether the
Synopsis was relevant, and to order its disclosure. However, absent a privilege, once
the Commission deemed the Synopsis to be relevant and directed the Department to
produce it, the entire unredacted document should have been made available to
Campbell for his review and consideration. Such disclosure would have permitted
Campbell to argue the purported relevance of page three to the Commission.
Notwithstanding, because the issue before the Commission was the Department’s
discipline rather than the PDC panel’s recommendation, the Commission’s error was
harmless.
            Campbell next argues that the Commission erred by concluding that the
Department established just cause for his discharge. This Court has explained:

            A civil service employee may be removed from
            employment only for just cause. The appointing authority
            bears the burden of proving just cause for removal. Just
            cause for removal must be merit related. Merit-related
            criteria include whether the employee failed to properly
            execute his duties or has acted in such a way that hampers
            or frustrates the execution of his duties. The criteria must in
            a rational and logical way touch upon the employee’s
            competency and ability.

Webb v. State Civil Serv. Comm’n (Dep’t of Transp.), 934 A.2d 178, 188 (Pa.
Cmwlth. 2007) (citations omitted).       “What constitutes just cause for removal is
largely a matter of discretion on the part of the head of the department.” Perry v.
State Civil Serv. Comm’n (Dep’t of Labor & Indus.), 38 A.3d 942, 951 (Pa. Cmwlth.


                                           13
2011). “Even a single instance of misconduct or an error of judgment can constitute
just cause for dismissal if it adversely reflects on the fitness of a person for his
duties.” Davis v. Civil Serv. Comm’n of Phila., 820 A.2d 874, 878 (Pa. Cmwlth.
2003). Further, “[w]hether the actions of a civil service employee constitute just
cause for removal is a question of law fully reviewable by this Court.” Perry, 38
A.3d at 951.
               Here, the Commission concluded that substantial evidence supported the
Department’s charges against Campbell for submitting or permitting the submission
of reports containing omissions and/or misrepresentations, failing to cooperate
truthfully and completely with a Department investigation, and failing to adequately
supervise subordinates and inmates. Based thereon, the Commission declared that
Campbell’s conduct “reflect[s] negatively upon his competence and ability to perform
his job duties.” Commission Adjudication at 19.
               This Court’s consideration of this matter is informed by Department of
Corrections v. Roche, 654 A.2d 64 (Pa. Cmwlth. 1995), wherein Corrections Officer
Roche observed an inmate transfer during which numerous inmates were injured.
Upon questioning, Roche denied that he had seen any staff assault the inmates.
However, after the investigation revealed that Roche’s representations were
inconsistent with the Department’s findings, Roche was directed to undergo
counseling. Thereafter, Roche was ordered to testify about the incident before a
grand jury, and Roche testified that he did not observe staff assault any inmates. The
grand jury indicted him for making false declarations regarding the incident. Roche
later admitted that he had observed staff assault inmates during the incident. The
resulting grand jury indictments of prison guards led to negative publicity. Roche
was ultimately discharged from his position for violating the Department’s Code of
Ethics (Ethics Code). On appeal, the Commission reviewed the Department’s action
and, although it concluded that the Department established Roche’s ethics violations,
                                          14
the Commission determined that his conduct did not warrant his removal, so Roche
was reinstated. The Department appealed to this Court. This Court reversed the
Commission’s decision on the basis that the Commission abused its discretion. This
Court explained:

               [T]here is no legal excuse for Roche’s failure to report the
               assaults on prison inmates. As a Sergeant and Corrections
               Officer, he had a duty to prevent such injustice. At the very
               least, he was required to report the abuses and to do so
               promptly and truthfully. . . . He did neither. Further, he
               participated in an attempt to cover-up the criminal
               actions of fellow corrections officers by lying about what
               he observed that evening, not only to the officers who
               conducted the internal investigation, but to the United
               States District Court grand jury.
               Roche’s actions constitute a dereliction of duty in a matter
               of critical public concern and reflect upon his ability to
               perform his duties as a Corrections Officer.             ‘The
               appearance of wrongdoing by an employee in a sensitive
               position reflects unsatisfactorily on the employee’s
               ability to perform his duties and supports his dismissal
               for just cause.’ Stone v. State Corr[.] Inst[.] at Graterford,
               . . . 422 A.2d 1227, 1228 ([Pa. Cmwlth.] 1980). Further, his
               actions contributed to the discredit brought upon the
               Department by the events of November 6, 1989. See
               Ettinger v. State Civil Serv[.] Comm[’]n, . . . 539 A.2d 67
               ([Pa. Cmwlth.] 1988) (prison officer is [a] highly sensitive
               position which requires those who hold it to avoid
               appearance of impropriety); Dep[’t] of Justice, Bureau of
               Corr[.] v. Grant, . . . 350 A.2d 878 ([Pa. Cmwlth.] 1976).

Roche, 654 A.2d at 69 (emphasis added).7
               Here, the Department’s witnesses credibly testified that Campbell
directed them to alter their DC-121 reports relative to the Incident to intentionally
omit and/or misrepresent information pertaining thereto. The record evidence further

       7
          The Court opined that to permit the Commission’s decision to stand “would emasculate the
ability of the Department to rid itself of employees unable to perform their duties within the ethical
standards set forth in the [Ethics Code] handbook.” Roche, 654 A.2d at 69.
                                                 15
demonstrated that Campbell failed to properly supervise inmates and his subordinates
and adhere to the Ethics Code and the Department’s policies and procedures.
Notably, the Department presented testimony describing the importance of the
relevant Ethics Code sections and Department policies and procedures, and the
potential impact of Campbell’s failure to adhere to them.
            Baird explained the importance of employees submitting truthful
complete reports, as follows:

            We trust our lieutenants - - - all of our staff members
            actually to be truthful and forthright when it comes to report
            writing. It’s imperative that everybody inside the institution
            knows exactly what happens during an incident. And when
            it’s misrepresented, there’s a lot of security concerns that
            may be overlooked.

N.T. at 187-88. Baird further expounded:

            I believe we found that [] Campbell failed in all regards of
            his essential job functions. When he entered the institution
            that day as the . . . SRTU [L]ieutenant, it was his
            responsibility to ensure that staff were following the rules
            and regulations and ensuring the care, custody, and control
            [of] inmates. He failed to do those. He did not - - - there
            were inmates out in the dayroom without an officer present.
            There was an inmate in the law library. The secure feeding
            aperture, the tray slot, pie slot - - - it’s been referred to as
            several different things - - - it was not secured. Obviously,
            we had an inmate - - - there was an assault. There was an
            inmate that came out of that secure aperture. Like []
            Hoover testified, we’re not 100 percent sure, but he came
            out. And it should have never happened. The reports
            submitted were less than truthful. They weren’t accurate.
            They weren’t complete. He failed to look further into the
            situation. And we just felt that he had failed [i]n several - -
            - several ways.
            ....
            When the commissioned officer fails to perform his duties,
            we have an incident like happened on this day. If he would
            have went in there and done that, this [I]ncident would have
                                          16
            never occurred. I’m 100 percent certain that this [I]ncident
            would have never occurred. And obviously, we had
            inmates get injured. When the staff responded, they did use
            force. They could have been injured. And obviously, that’s
            safety and security.

N.T. at 190-192; see also N.T. at 198. Baird also testified that he could no longer
trust Campbell to write reports, since he had exhibited a willingness to submit
misleading information.    See N.T at 202.      Clearly, the Department’s evidence
demonstrated that Campbell’s failures to properly execute his duties during and after
the Incident, “touch[ed] upon [his] competency and ability” in a “rational and logical
way[.]” Webb, 934 A.2d at 188. Accordingly, we conclude that the Commission
properly declared that there was just cause to terminate Campbell’s employment.
            Campbell next asserts that the Commission erred by refusing to compel
the appearance and testimony of various witnesses. We disagree.
            Section 105.14a(a) of the Commission’s Regulations provides the
procedure for requesting subpoenas:

            (1) Subpoenas for the attendance of witnesses or for the
            production of documents will be issued only upon written
            application to the Chairperson of the Commission or the
            Commissioner presiding at hearing, with a copy to the
            opposing party.
            (2) Written application shall specify as clearly as possible
            the relevance of the testimony or documentary evidence
            sought. As to documentary evidence, the request must
            specify to the extent possible the documents desired and the
            facts to be proved thereby.
            (3) Failure to adhere to the requirements of this subsection
            may result in the refusal by the Commission to issue the
            requested subpoenas.
            (4) Subpoenas for new or additional witnesses will not be
            issued after a hearing has been commenced and continued
            unless orally requested on the record at the hearing and
            approved by the Commission, except that subpoenas issued

                                         17
            prior to the commencement and continuance of the hearing
            may be reissued upon written request.

4 Pa. Code § 105.14a(a).
            By April 20, 2016 letter (April 20th Letter), Campbell requested the
Commission to issue subpoenas for eight witnesses, including Heverly, McFee,
Rutherford, Corrections Officers Steven Conklin (Conklin) and T. Van Orden (Van
Orden), Garman, Tice and Captain Scott Dale (Dale). In accordance with Section
105.14a(a)(2) of the Commission’s Regulations, the April 20th Letter named the
witnesses and described the reasons for their testimony as follows:

                   2. [] Conklin - CO1
            ....
            [] Conklin was also an eyewitness to the inmate altercation
            that resulted in [Campbell’s] termination.
            ....
                   4. [] Van Orden - CO1
            ....
            [] Van Orde[n] was an eyewitness to the inmate altercation
            that resulted in [Campbell’s] termination.
            ....
                6. [] Tice         -   DOC     Deputy     for   Facilities
            Management
            ....
            [] Tice authored [ the Synopsis] and represented that ‘[a]s
            Facility Manager, it is my responsibility to indicate the
            action taken against an employee. My hand-written
            instructions and signature will serve as the approval for this
            action,’ indicating that [] Tice did approve the disciplinary
            action against [Campbell], which approval was redacted
            from the Synopsis.


                                          18
                      7. [] Garman, Superintendent, Rockview []
               ....
               Superintendent Garman would or should have been the
               ultimate authority for the imposition of the disciplinary
               action against [Campbell]; and would also have reviewed
               all documentary evidence used for that purpose.
                      8. [] Dale, Rockview []
               ....
               [] Dale observed a [Department] document from the highest
               authority at Rockview [], that recommended that
               [Campbell] be demoted, not suspended.

R.R. at 207a-208a (bold emphasis added).
               The Commission refused to issue subpoenas for Conklin, Van Orden,
Garman and Dale.            At the hearing, Campbell’s counsel did not raise the
Commission’s refusal to issue those subpoenas, and did not express his desire for
their testimony. Only Tice’s absence was discussed.8 The law is well-established
that issues not raised before a Commonwealth agency are waived and may not be
raised on appeal. 2 Pa.C.S. § 703;9 see also Pa.R.A.P. 302(a). Accordingly, we hold
that, with the exception of Tice, Campbell waived his challenge to the Commission’s
refusal to issue subpoenas for the proposed witnesses.



       8
               The notes of testimony clearly reveal[] that only Tice’s appearance was discussed:
               Commissioner: . . . . You had one witness that you wished to call but
               was not available for today.
               [Campbell’s Counsel]: Yes. [] Tice, as a matter of fact, authored the
               PDC - - - or signed off on the PDC minutes.
N.T. at 281.
       9
          Section 703(a) of the Administrative Agency Law states: “A party who proceeded before a
Commonwealth agency . . . may not raise upon appeal any . . . question not raised before the agency
. . . unless allowed by the court upon due cause shown.” 2 Pa.C.S. § 703(a).
                                                19
             Campbell asked the Commission to hold the record open for Tice’s
testimony.      The Commission explained in a June 6, 2016 letter to Campbell’s
counsel:

             [Y]ou requested the Commission to hold the record open so
             you could obtain the testimony of [] Tice. []Tice chaired
             the panel of three who conducted the [PDC] with your
             client prior to his removal. The other two members of the
             panel were [] Baird and . . . Confer, both of whom have
             already testified on the record and were cross-examined by
             you. Baird and Confer have both testified that it was the
             entire panel’s conclusion that the charges were
             substantiated and warranted discipline, although the panel
             itself did not make a recommendation concerning the
             appropriate discipline. It is noted that none of the panel
             members, including [] Tice, have any direct personal
             knowledge of the [I]ncident upon which the final decision
             to remove your client was based.
             After careful review and consideration, the Commission has
             determined that i[t] has heard sufficient testimony
             concerning the events at the [PDC] from the two panel
             members who have already testified and that the testimony
             of a third member of the panel would only be cumulative
             and redundant. Therefore, the potential value of [] Tice’s
             testimony, if any, is far outweighed by the additional time
             and expense that will be required to obtain it. Therefore,
             your request is denied. The record of evidence in this
             appeal is hereby closed.

R.R. at 209a.
             This Court has stated:

             The Commission’s [R]egulations authorize the Commission
             to compel testimony or the production of documents by way
             of subpoena. 4 Pa.Code § 105.14a. In Zukoski v.
             Unemployment Compensation Board of Review, . . . 525
             A.2d 1279 ([Pa. Cmwlth.] 1987), this [C]ourt held that an
             administrative agency empowered to subpoena witnesses or
             documents has an absolute duty to subpoena witnesses
             necessary for a proper determination. However, where
             the number and scope of the subpoenas requested suggest

                                         20
               that the subpoenas were sought to harass or conduct a
               ‘fishing expedition’, the agency does not commit an error of
               law or abuse its discretion in denying the subpoenas.

Quinn v. Pa. State Civil Serv. Comm’n, 703 A.2d 565, 570 (Pa. Cmwlth. 1997)
(citations omitted; emphasis added). Notwithstanding, “[t]his Court will not reverse
[a] decision to limit witness production except for an abuse of discretion.”10 1st Steps
Int’l Adoptions, Inc. v. Dep’t of Pub. Welfare, 880 A.2d 24, 34 (Pa. Cmwlth. 2005).
Thus, we consider whether the Commission abused its discretion by denying
Campbell’s request because Tice’s testimony was not “necessary for a proper
determination.” Quinn, 703 A.2d at 570.
               Although Tice might have been able to provide insight into the Synopsis,
two members of the PDC panel testified and explained that no recommendation on
discipline was made. Because the two other members of the PDC panel testified
before the Commission, Tice’s testimony would be cumulative and redundant.
Further, since the issue before the Commission was whether the Department had just
cause to terminate Campbell’s employment, the propriety of the PDC panel’s
recommendation was not at issue before the Commission. Under the circumstances,
the Commission did not err by refusing to compel Tice’s appearance and testimony.
               Finally, Campbell contends that the Commission should have mitigated
the Department’s discipline. We disagree. Section 952(c) of the Act 11 provides:

               In the case of any employe removed, . . . the [C]ommission
               may modify or set aside the action of the appointing
               authority. Where appropriate, the [C]ommission may
               order reinstatement, with the payment of so much of the



       10
            “An abuse of discretion is not merely an error of judgment, but occurs only where the law
is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias or ill will, as shown by the evidence or the record.” Zappala v. Brandolini
Prop. Mgmt., Inc., 909 A.2d 1272, 1284 (Pa. 2006).
         11
            Added by Section 21 of the Act of June 26, 1989, P.L. 47, 71 P.S. § 741.952(c).
                                                  21
             salary or wages lost, including employe benefits, as the
             [C]ommission may in its discretion award.

71 P.S. § 741.952(c) (emphasis added).
             “Under Section 952(c) [of the Act], therefore, the Commission may
modify the appointing authority’s disciplinary action in an appropriate case, even
where the underlying charges against the civil service employee are proven.” Dep’t
of Corr., State Corr. Inst. at Chester v. State Civil Serv. Comm’n (Mason), 837 A.2d
1273, 1277 (Pa. Cmwlth. 2003) (emphasis added). Although Section 952(c) of the
Act authorizes the Commission to modify disciplinary action in appropriate instances,
it does not mandate it, and we may not impose such a duty where the General
Assembly has not seen fit to do so. Thus, the Commission is under no duty to modify
Campbell’s discipline.12
             Further, the Commission’s decision to modify a penalty is reviewed
under an abuse of discretion standard. See Roche. The Pennsylvania Supreme Court
has explained:

             While [we] ha[ve] indicated that the [Commission] may
             modify the action of an appointing agency ‘even where the
             charges brought against the employee are proven,’ Galant[
             v. Dep’t of Env’l Res.], 626 A.2d [496,] 498 [(Pa. 1993)],
             we hold that the [Commission’s] ability to alter an agency’s
             employment action is not without boundaries.

Pa. Game Comm’n v. State Civil Serv. Comm’n (Toth), 747 A.2d 887, 893 (Pa. 2000).
             In Toth, The Pennsylvania Game Commission’s (Game Commission)
Chief of Personnel Service (Toth) challenged his discharge for purposely modifying
the payroll computer system to circumvent a recent change to eligibility for a
systematic pay increase. Toth was later charged with unlawful use of a computer and

      12
          Campbell relies on federal law to argue that this Court should impose a duty on the
Commission to consider modifying disciplinary action. Federal law does not govern the
Commission’s actions in this matter, and we will not impose a duty under the Act that is not
included therein.
                                             22
was accepted into the Accelerated Rehabilitation Disposition program. Before the
Commission, Toth contended that he acted at the direction of his superiors. The
Commission concluded that because Toth’s actions were at the direction of his
supervisors, Toth did not act without justification and accordingly, he should be
reinstated.
              On review, this Court reversed the Commission’s decision. The Toth
Court affirmed, explaining:

              In light of the position held by Toth, the unjustified acts he
              committed, and just cause for his termination, the
              [Commission] was without a basis to modify the Game
              Commission’s decision to terminate Toth. Simply stated,
              this is not an appropriate situation to modify the Game
              Commission’s action. In this case, the proven and admitted
              misconduct constituted a serious dereliction of duty and
              directly impacted upon Toth’s ability to perform in his
              position. By the [Commission’s] own findings, just cause
              for dismissal was established and modification was not
              appropriate.

Toth, 747 A.2d at 893–94. Similarly, in Roche, this Court found the employee’s
conduct merited dismissal, and the Commission’s modification was an abuse of
discretion.
              In stark contrast, here, the Commission did not modify the Department’s
penalty, but instead, upheld Campbell’s dismissal. However, similar to Roche, the
Commission, as fact finder, found that an individual in a highly-sensitive position
directed subordinates to make misrepresentations in incident reports pertaining to an
inmate assault that resulted in serious injuries. The Commission further determined
that Campbell failed to adhere to Department’s policies and procedures and violated
the Department’s Ethics Code. Thus, even if this Court were to conclude that the
Commission had a duty to consider modifying the penalty, we hold that in light of the



                                           23
Commission’s findings, the Commission did not abuse its discretion by declining to
modify Campbell’s employment termination.
            For all of the above reasons, the Commission’s Adjudication is affirmed.



                                     ___________________________
                                     ANNE E. COVEY, Judge




                                        24
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Darrell J. Campbell,                   :
                        Petitioner     :
                                       :
                   v.                  :
                                       :
State Civil Service Commission         :
(Department of Corrections),           :   No. 382 C.D. 2017
                        Respondent     :




                                     ORDER

            AND NOW, this 28th day of December, 2017, the State Civil Service
Commission’s March 3, 2017 adjudication is affirmed.


                                     ___________________________
                                     ANNE E. COVEY, Judge
