          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania,           :
Pennsylvania Game Commission,           :
                Petitioner              :
                                        :
             v.                         :   No. 609 C.D. 2018
                                        :   Submitted: May 8, 2019
State Civil Service Commission          :
(Minnier),                              :
                    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 Julie A. Minnier to her position as Wildlife Maintenance Propagator. The Game
Commission furloughed Minnier when it closed the pheasant game farm where she
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 Minnier’s furlough was necessitated by lack of funds and in
refusing even to address the Game Commission’s evidence that her furlough was
also necessitated by a lack of work.
             On December 12, 2016, the Game Commission notified Minnier that
she would be furloughed from her 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 Minnier 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
Minnier 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 14 (N.T. __); Reproduced Record at 68a (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. 24a. 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 purchasing day-old chicks.
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 Minnier was made. He
stated that because “we did not get our license fee increase” from the legislature, it
became necessary to close the game farms. N.T. 19; R.R. 73a. Initially, all four
game farms were slated for closure. However, Boyd explained that, because the
pheasant propagation program adds value to the Game Commission’s operations,


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. 27a.
                                                3
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. And how did you pick which farms would be closed?

             A. Well, it was a difficult decision but we basically, divided the
             State into Eastern half and Western half. In the Western [half],
             the Southcentral Game Farm was clearly located in the center of
             that area. So from a logistical point of view that makes sense.

             In the eastern half, the Loyalsock and the [North Central] Game
             Farms are fairly close together so that would be the big criteria
             there. But primarily, the Loyalsock Game Farm had a breeder
             flock and by eliminating breeders that would open up those
             feeders to be used for growing out birds for our fall season
             releases.
             So the [North Central] Game Farm did not have a breeder flock
             and did not have the potential to increase capacity.
             Q. Is it necessary to have additional Wildlife Maintenance
             Propagators in order to raise the chicks on the remaining farms?

             A. No.

             Q. And is there other work at the remaining farms that Wildlife
             Maintenance Propagators are needed to perform?
             A. There are no unmet needs.

N.T. 20-21; R.R. 74a-75a. Minnier did not question Boyd.
             Minnier, who was pro se, was sworn and then presented her case.
Minnier opined that the propagators should have been employed until the end of the
fiscal year because “there was still work to be done” and “there [were] funds in [the
budget] for us until June.” N.T. 25, 28; R.R. 79a, 82a. Minnier did not offer any
documentary evidence.


                                          4
               The Game Commission moved to admit both Appointing Authority
Exhibits 1 and 2, and Minnier did not object. Accordingly, both documents were
entered into the record.
               The Civil Service Commission sustained Minnier’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 Minnier’s record, return
Minnier to regular employment as a Wildlife Maintenance Propagator within 30
days and reimburse Minnier for all wages and emoluments due since January 27,
2017, less wages and benefits received.
               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 Minnier’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 Minnier’s furlough. Third, it argues that in


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).
                                                5
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




4
    Minnier 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. 609 C.D. 2018
                                         :
State Civil Service Commission           :
(Minnier),                               :
                    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          :
(Minnier),                              :   No. 609 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 Julie Minnier’s (Minnier) furlough was necessitated
by lack of funds and in refusing to address the Game Commission’s evidence that her
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 Minnier’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 Minnier to her position as Wildlife Maintenance Propagator.



                                        __________________________
                                        ANNE E. COVEY, Judge



Judge McCullough and Judge Wojcik join in this dissenting opinion.




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