Carrow v. Philadelphia

Dissenting Opinion by

Mb. Justice Musmanno :

One of tbe primary purposes of tbe Philadelphia Home Rule Charter, which has come here for interpretation in. one. of its -vital phases, was to eliminate unnec*263essary duplication of offices, thereby removing from the backs of the taxpayers unproductive salaried employes, so often characterized in the campaign for the adoption of the charter as drones. Thus, where an honest doubt arises in the interpretation of any provision of the Charter, concerning the number of employes, that view should prevail which would reduce the size of the city payroll rather than increase it or hold it constant to the swollen figures which existed prior to this drastic reform.

The majority opinion, however, in the natural centrifugal sweep of its authority, would accomplish just the reverse. Without reflecting on the plaintiff or any other person involved in this litigation, the majority opinion would tend to give permanency of position to the indolent, unyielding tenure to the idlers and offer a sluggard’s paradise to the inefficient and incompetent. It is true that the Majority Opinion states that it is not to be construed as preventing the reduction of force if funds or work is lacking for the particular jobs in question. Of course, if there are no funds with which to pay the salary of the employes involved, the problem in this case becomes sheerly academic because I believe we can take judicial notice of the fact that no employe will remain on the deck of a sinking job without the lifesaver of a pay envelope. But while the lack of funds would empty the office at once, the lack of work could have the opposite effect, provided the salary continued.

The Majority Opinion says that in the absence of work the employe could be discharged, but who would discharge him? The reasoning that the majority uses in saving the job of the plaintiff in this case could be employed just as effectively to retain the person whose desk is clear with the exception of the cobweb of workless duties spinning over it. If Section 104-A *264retains Margaret S. Carrow because of the wording that employes “shall be continued in their respective positions” it will retain also the workless John Doe for it can always be argued that the position exists even though it involves no work.

The Majority Opinion disparages this view with the assertion that every employe knows he may be discharged if he violates the condition of his employment. One of the conditions of Miss Carrow’s employment was that she could be discharged at the will of her employer. Leaving aside for the moment the philosophy of the entire project, the fact remains that under our system of democracy, and it is the best in the world, we vote people in or out of office for any particular reason which is sufficient unto ourselves. And it is assumed that when a certain candidate is victorious at the polls, he will carry into effect the program upon which he campaigned. In the effectuation of that program it is also to be assumed that he will employ those in favor of his program and discharge those who are opposed to it, because that is the people’s will, as they have expressed it at the polls.

The Charter provides that employes who already possess civil service status “shall be continued in their respective positions without further examination, until lawfully separated from their positions.” Those who do not have civil service status “shall also be continued in their respective position” provided “they pass a qualifying test.”

It has been submitted by the appellee and the argument presumably accepted by the majority of this Court that the proposition “shall be continued in their respective positions” means the same as saying that the non-civil service employes “shall not be discharged.” But I do not think so. This provision with regard to retention was simply to negative the conclusion which *265would naturally otherwise follow, namely, that with the elimination of certain offices the jobs that went with those offices would be eliminated also. Thus, to prevent outright automatic wholesale dismissals, with the inevitable confusions such blanket dismissals would cause, the Charter provided that the employes in question were to continue in their respective positions. It must be understood that they would continue as they were, that is, with the same rainment they wore before. The Charter did not dress them in a new suit of immunity from dismissal. They had never had such immunity— and it was not given them by the Charter. If the employes were to be provided, by the simple acceptance of the Charter by the people, with fire-proof jobs, the Charter could easily have so declared. As able counsel for the appellant well put it, the Charter could have stated that the employes could not be discharged without the conventional concomitants of tenure, which, of course, include cause, notice and hearing. But the Charter did not so provide.

If civil service employes may be “lawfully separated” from their positions, why may not the non-civil service employes also be so separated? As a matter of fact, the Charter does provide for that very separation. It says that non-civil service employes shall also be continued, provided, etc. The also means that they may, like the civil service employes, be “lawfully separated.” What is the lawful separation they can be subjected to? Naturally that separation is the separation envisaged in the very law under which they were originally appointed, namely, the Act of June 25, 1919, P.L. 581, Art. XIX, §4, 58 P.S. §3324, which declares that non-civil service employes “shall continue to hold office, position or employment only until laid off or removed for inefficiency by the appointing officer or until removed under the provisions of this article.” (Italics supplied.)

*266Sec. 1014-A points out in the manner in which the non-civil service employe may become a civil service employe but it does not say that he must become one. Providing- the machinery for the retention of an employe, if his work is satisfactory and he has the approval of his employer, is far different from saying that he must stay on — regardless.

That the framers of the Charter never intended that a non-civil service employe was to receive an indestructible chain by which he could hold on to his job forever is clearly evidenced by a reading of Annotation 2B under Section A-104, which says: “Non-civil service employees under the 1919 Charter. . . . automatically retain their employment status for a period of one year.” That is to say, they are not frozen in office. They are held in an employment status, and their employment status is governed by the Act of June 25, 1919, above referred to.

The one year limit represents the time within which the employe has the opportunity to qualify for civil service, provided the employer wishes to retain him. The one year period is a temporary roof under which the employe can await the intentions of the employer; it is not intended as a permanent structure for a storm-proof job for all time. This section 104-A also places a time limit on the employer because, if the employe has not qualified for civil service within one year, he may not hold his job even though the employer wishes to retain him.

Under the reasoning set up by the majority, the present non-civil service employes could go on holding their jobs into the indefinite horizonless future. Since the civil service tests do not need to be competitive or even written, it is not too much to assume that on the sole basis of previous and presumed experience every present employe will be retained; and thus the con*267solidation of county and city will have effected no reduction in personnel whatsoever. Only resignations and deaths would reduce the number of employes, and it has been said facetiously, but with a grain of seriousness too, that people in government service seldom die and never resign.

But over and above this, and this seems to me the conclusive answer to the Majority Opinion that the employe may not be discharged at the will of the employer, the charter makes absolutely no provision for ascertainment of an employe’s skill in the event the employer wishes to discharge the employe for incompetency. If an employe can be discharged for inefficiency, as the Majority Opinion holds, who determines that inefficiency? Certainly the employe will not admit to inefficiency and the employer’s word will not be accepted. This is surely an impasse never intended by the framers of the Charter and one that should not come to pass.

There can be no efficiency in any office or in any enterprise of any kind unless there is someone charged with responsibility for the enterprise, and that responsibility can be discharged only through loyal, cooperative and able co-workers. To the extent that these coworkers lack in loyalty to the person who has the responsibility of steering the ship, to that extent the enterprise is endangered by the shoals and rocks of indifference, inefficiency and shoddiness of effort. To give a person an office without authority over the employes therein is like giving a captain a ship with no control over his crew. While there is something to be said in behalf of the lowly employe, helpless in the political storms which rage about him, there is something also to be advanced in behalf of the individual charged with responsibility to the general public which expects and has the right to expect an honest and *268efficient administration. That efficiency of administration can only come from staunchness of devotion on the part of the employes to duty and to the policies announced by the head of the office.

The decision of this Court, it seems to me, runs counter to the very purpose of the Charter. The Charter came into being because of the solicitude of the people for the Ship of State and not for the barnacles which had attached themselves to it over the years. Without any disrespect intended to the employes who naturally are concerned about their livelihood and have the right to seek to retain their jobs, this decision should be based on the overall program as to the goal aimed at in the consolidation of county and city and not on any particular detail thereof. In an enterprise of this magnitude there is bound to be some temporary hardship suffered by someone. .• However,- in the general unfoldment'.of a, worthy, program-,; which,- of course.,-the consolidation is, there will be. room- for .-benefits to -all. And in that.-respeet I believe that the best results can be obtained by giving freedom of choice to officeholders .in choosing their co-workers, leaving it to the people in the exercise of wisdom at the ballot box to reward the faithful and discard those who have been untrue to the trust.