          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania,           :
Pennsylvania Game Commission,           :
                Petitioner              :
                                        :
             v.                         :   No. 610 C.D. 2018
                                        :   Submitted: May 8, 2019
State Civil Service Commission          :
(Baysore),                              :
                    Respondent          :

BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                               FILED: October 18, 2019

             The Pennsylvania Game Commission petitions for this Court’s review
of an adjudication of the State Civil Service Commission ordering the reinstatement
of Aaron D. Baysore to his position as Wildlife Maintenance Propagator. The Game
Commission furloughed Baysore when it closed the pheasant game farm where he
worked as a propagator. The Game Commission contends that the Civil Service
Commission erred in holding that the Game Commission’s evidence did not make a
prima facie case that Baysore’s furlough was necessitated by lack of funds and in
refusing even to address the Game Commission’s evidence that his furlough was
also necessitated by a lack of work.
             On December 12, 2016, the Game Commission notified Baysore that
he would be furloughed from his position as Wildlife Maintenance Propagator
effective January 27, 2017, due to a lack of funds. Pursuant to Section 951(a) of the
former Civil Service Act,1 Baysore appealed to the Civil Service Commission, which
held a hearing on May 1, 2017.
              The Game Commission called Robert Boyd, the Wildlife Services
Division Chief for the Commission’s Bureau of Wildlife Management (Bureau), to
testify about why the Bureau closed the North Central Game Farm and furloughed
Baysore and five other pheasant propagators who worked there. The Bureau, inter
alia, operates a pheasant propagation program that hatches pheasant chicks and
raises them at game farms located in different parts of the state. As Division Chief,
Boyd is responsible for the pheasant propagation program’s finances and budget.
Notes of Testimony, 5/1/2017, at 15 (N.T. __); Reproduced Record at 64a (R.R. __).
              Boyd identified two Game Commission memoranda that were authored
by the agency’s Executive Director, Robert Hough. Boyd was the recipient of one
memorandum and copied on the other. In the first memorandum, Appointing
Authority Exhibit 1, Hough wrote to staff on April 7, 2015, that the Game
Commission had been instructed by the Governor’s Office to reduce “this year’s
budget by an additional $5.2 million; this is on top of the $14 million we were
already required to cut from our budget this winter.” Appointing Authority Exhibit
1 (AA-1); R.R. 19a. The memorandum cited a decline in the Game Commission’s
revenue from natural gas leases of state game land and projected a $35 million deficit
by 2019 unless program modifications were made. Hough’s second memorandum,
Appointing Authority Exhibit 2, was addressed to the Governor’s Secretary of

1
 Act of August 5, 1941, P.L. 752, as amended, added by Section 27 of the Act of August 27, 1963,
P.L. 1257 (provides for appeals and hearings), formerly 71 P.S. §741.951(a). The Civil Service
Act was repealed by the Act of June 28, 2018, P.L. 460, effective March 28, 2019. The subject
matter of Section 951 of the former Civil Service Act is now found at 71 Pa. C.S. §§2202 and
3003, as enacted by the Act of June 28, 2018, P.L. 460.
                                               2
Administration and notified the Secretary that the Game Commission intended to
furlough 13 pheasant propagators, effective January 27, 2017.2 Boyd was one of
four senior Game Commission staff copied on this communication to the Secretary
of Administration.
                Boyd testified that the Game Commission was instructed to reduce
expenses because its funding had been reduced by 10 percent for fiscal year 2015-
2016 and 25 percent for the following year. Boyd testified that his Bureau
implemented these instructions by not filling vacant propagator positions and
deferring certain capital improvements. Most significant was the Bureau’s decision
to end the pheasant hatchery operations and move to the process of purchasing day-
old chicks from a private vendor.              Boyd explained that in 2015 the Game
Commission spent $4.7 million on pheasant propagation; in 2017, this was reduced
to $3 million. Boyd explained that personnel constitutes the largest single expense
item in the Bureau’s budget for the pheasant propagation program.
                Boyd explained how the decision to furlough Baysore was made. He
stated that because “we didn’t get the license fee increase” from the legislature, it
became necessary to close the game farms. N.T. 21; R.R. 70a. Initially, all four
game farms were slated for closure. However, Boyd explained that the agency
decided to “reduc[e] to two farms and cut[] costs in the chain somewhere perhaps


2
    Hough’s memorandum of November 15, 2016, states, in relevant part, as follows:
      It has been determined that it will be necessary to furlough 13 Wildlife Maintenance
      Propagators from the Western and [North Central] Game Farms. These positions
      are covered by a collective bargaining unit [] and these are Civil Service covered
      positions. The anticipated date of the furlough is January 27, 2017. Each game
      farm is its own seniority unit and all propagators in each unit will be furloughed.
      The Western Game Farm is furlough unit 008 with 7 propagators and the North
      Central Game Farm is furlough unit 010 with 6 propagators.
Appointing Authority Exhibit 2 (AA-2); R.R. 22a.
                                                3
just to improve efficiency.” Id. Accordingly, the Game Commission decided to
keep two farms open, one in each part of the state. He explained how the Bureau
chose the farms to be closed:

            Q. How did you pick which farms would be closed?

            A. Well, it was a very difficult decision, to be honest with you.
            But we decided to divide the state into an eastern half and a
            western half. And the first criteria was to choose a farm that was
            somewhat centrally located in each of those two areas.

            In our two --- in our western half of the state, the Southwest
            Game Farm was the clear winner of that situation. But the
            Eastern half with the Loyalsock and [North Central] both are
            close together so that wasn’t working.
            But what really distinguished the two farms is because the
            Loyalsock Game Farm had a breeding flock and [they had] a lot
            of open field space for improvement of capacity for birds to be
            released for hunters. Whereas, [North Central] Game Farm did
            not.

            Q. And is it necessary to have additional Wildlife Maintenance
            Propagators in order to raise the chicks at the remaining farms?
            A. No, because there are no longer eggs at this time.

            Q. Isn’t there any other work that the Game Farm Wildlife
            Maintenance Propagators are needed to perform?

            A. No.

N.T. 22-23; R.R. 71a-72a.
            On cross-examination, Baysore, who was pro se, asked Boyd if
propagators from the Loyalsock Game Farm were doing work at the North Central
Game Farm. Boyd responded that the staff was performing maintenance work as
needed. Baysore then asked, “[i]f personnel costs are what is such a problem how

                                         4
can [the agency] furlough 13 people and then start a new [Wildlife Conservation
Officer] class to hire twice that many people?” N.T. 25; R.R. 74a. Boyd replied, “I
do not get that level to be involved in those decisions or how those decisions are
being made. But I know [the agency] focused on the Propagation Program.” Id.
            Baysore was sworn in as a witness. He did not offer any documentary
evidence. He testified, “I don’t know if there’s work. I just don’t understand how
they’re claiming lack of work if they’re having other people go there to do work.”
N.T. 28; R.R. 77a.
            The Game Commission moved to admit both Appointing Authority
Exhibits 1 and 2, and Baysore did not object. The Commissioner stated that
“Appointing Authority Exhibit 1 and Appointing Authority Exhibit 2 will be
admitted to the record without objection.” N.T. 26; R.R. 75a.
            The Civil Service Commission sustained Baysore’s appeal. It found
that the two memoranda authored by Executive Director Hough were hearsay and
not entitled to probative value. It further found that Boyd’s testimony was not
sufficiently specific and did not corroborate the documents. The Civil Service
Commission held:

            The appointing authority has failed to present evidence
            establishing a lack of funds sufficient to justify furlough under
            Section 802 of the Civil Service Act, as amended.

Civil Service Commission Adjudication at 16. Based on this conclusion, it ordered
the Game Commission to expunge the furlough from Baysore’s record, return
Baysore to regular employment as a Wildlife Maintenance Propagator within 30
days and reimburse Baysore for all wages and emoluments due since January 27,
2017, less wages and benefits received.


                                          5
               On May 1, 2018, the Game Commission petitioned for this Court’s
review,3 and it makes three arguments on appeal. First, it argues that the Civil
Service Commission erred in holding that the Game Commission did not present a
prima facie case that lack of funds caused Baysore’s furlough. Second, it argues
that the Civil Service Commission erred in refusing to address the Game
Commission’s evidence that lack of work caused Baysore’s furlough. Third, it
argues that in reaching its conclusion, the Civil Service Commission improperly
considered the Game Commission’s decision to hire additional law enforcement
personnel.4
               The issues raised by the Game Commission are identical to those raised
in Pennsylvania Game Commission v. State Civil Service Commission (Wheeland),
__ A.3d __ (Pa. Cmwlth., No. 608 C.D. 2018, filed October 18, 2019). For the
reasons set forth in Wheeland, we vacate and remand for further proceedings.


                                        _____________________________________
                                        MARY HANNAH LEAVITT, President Judge




3
  In reviewing an adjudication of the Civil Service Commission, this Court determines whether
necessary findings of fact are supported by substantial evidence, whether an error of law has been
committed or whether constitutional rights have been violated. Pennsylvania Game Commission
v. State Civil Service Commission (Toth), 747 A.2d 887, 891 (Pa. 2000).
4
  Baysore has not filed a brief and, thus, has not participated in this appeal.
                                                6
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania,            :
Pennsylvania Game Commission,            :
                Petitioner               :
                                         :
            v.                           :   No. 610 C.D. 2018
                                         :
State Civil Service Commission           :
(Baysore),                               :
                        Respondent       :


                                   ORDER

            AND NOW, this 18th day of October, 2019, the order of the State Civil
Service Commission in the above-captioned matter dated April 5, 2018, is
VACATED for the reasons set forth in the Court’s opinion in Pennsylvania Game
Commission v. State Civil Service Commission (Wheeland), __ A.3d __ (Pa.
Cmwlth., No. 608 C.D. 2018, filed October 18, 2019). The matter is REMANDED
for further proceedings in accordance with the analysis in Wheeland.
            Jurisdiction relinquished.


                                  _____________________________________
                                  MARY HANNAH LEAVITT, President Judge
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania,          :
Pennsylvania Game Commission,          :
                     Petitioner        :
                                       :
                 v.                    :
                                       :
State Civil Service Commission         :
(Baysore),                             :   No. 610 C.D. 2018
                        Respondent     :   Submitted: May 8, 2019


BEFORE:    HONORABLE MARY HANNAH LEAVITT, President Judge
           HONORABLE RENÉE COHN JUBELIRER, Judge
           HONORABLE P. KEVIN BROBSON, Judge
           HONORABLE PATRICIA A. McCULLOUGH, Judge
           HONORABLE ANNE E. COVEY, Judge
           HONORABLE MICHAEL H. WOJCIK, Judge
           HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

DISSENTING OPINION
BY JUDGE COVEY                                     FILED: October 18, 2019

           I respectfully dissent from the Majority’s conclusion that the State Civil
Service Commission (SCSC) erred by holding that the Commonwealth of
Pennsylvania, Pennsylvania Game Commission’s (Game Commission) evidence did
not make a prima facie case that Aaron D. Baysore’s (Baysore) furlough was
necessitated by lack of funds and in refusing to address the Game Commission’s
evidence that his furlough was also necessitated by a lack of work. Because the
Game Commission’s Executive Director Robert M. Hough’s (Hough) April 7, 2015
Strategic Plan/Budget memorandum, and the November 15, 2016 Furlough
Notification letter from the Game Commission’s Administration Office’s Secretary
Sharon Minnich to Hough were uncorroborated hearsay evidence and the Game
Commission’s Wildlife Management Bureau’s Wildlife Services Division Chief
Robert Boyd did not testify with respect to the budgets, the Game Commission did
not meet its burden of proving that Baysore’s furlough was necessitated by a lack of
funds and/or a lack of work. Accordingly, for the reasons set forth in my dissenting
opinion in Pennsylvania Game Commission v. State Civil Service Commission
(Wheeland), __ A.3d __ (Pa. Cmwlth., No. 608 C.D. 2018, filed October 18, 2019), I
would affirm the SCSC’s order reinstating Baysore to his position as Wildlife
Maintenance Propagator.


                                        __________________________
                                        ANNE E. COVEY, Judge



Judge McCullough and Judge Wojcik join in this dissenting opinion.




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