Pagano v. Pennsylvania State Horse Pacing Commission

Concurring Opinion by

Judge Craig:

An important distinction in this case is the fact that it involved the discharge of an employee of a quasi-independent commission by authority of that commission. For that key reason, I believe that we have reached the correct result in holding the gubernatorial directive to be ineffective here.

*504However, our holding should not imply that we would condone a future repudiation by an executive of his own tenure directive with respect to any executive branch employee not under an independent commission, whether or not the directive amounts to an executive order authorized by statute.

Although no governor should be permitted to impose tenure limitations upon his successor without legislative authorization, we should not discourage the establishment of merit personnel policies made meaningful by enforceability within an administration.

A governor’s constitutional responsibility to administer the executive branch necessarily implies the power to use sound personnel policies for his own administration, as by offering assurances of tenure (dismissal only for cause) to attract qualified persons. Legislative authorization should not be required for a governor to be a reasonable employer and one who is held to his personnel commitments.

We now accept the fact that collective bargaining agreements may provide tenure rights for members of bargaining units. I cannot see why such a reasonable right cannot be part of the bargain by which the executive may choose to hire each individual employee.

In Mahoney v. Philadelphia Housing Authority, 13 Pa. Commonwealth Ct. 243, 320 A.2d 459 (1974) (allocatur refused), cert. denied, 419 U.S. 1122 (1975), we let a housing authority repudiate its own personnel policy, on the authority of Scott v. Philadelphia Parking Authority, 402 Pa. 151, 166 A.2d 278 (1960), but the citation of the Scott case in American Federation of State, County and Municipal Employees v. Shapp, 443 Pa. 527, 280 A.2d 375 (1971) provides no assurance that Scott has survived enactment of the Public Employe Relations Act, Act of July 23, 1970, *505P.L. 563, as amended, 43 P.S. §1101.101 et seq., as to a case where a tenure policy has been stated; the fact situation of the AFSCME case involved no semblance of a contractual right.

In DeFrank v. County of Greene, 50 Pa. Commonwealth Ct. 30, 412 A.2d 663 (1980) we recently held that county commissioners are estopped from denying the efficacy of personnel tenure policies followed by them in a way which warranted employee reliance. Although DeFranlc might be distinguished from Ma-honey on the basis that a board of county commissioners possesses legislative power as well as administrative power, we should not cling to that distinction.

In the present case, our limitation of the executive’s policy directive contributes to the independence of the commission. However, where that is not a consideration, we should allow an executive to administer personnel tenure on the basis of a declared merit system and, taking the executive at his word, enforce that commitment within his own term.

President Judge Crumlish and Judges Rogers and Williams, Jr. join in this concurring opinion.