Williams v. Civil Service Commission

Dissenting Opinion by

Judge Mencer:

Hindsight tends to sharpen one's view of circumstances and produces a keener insight with which to judge events. The human tendency to apply hindsight to a situation that had an unfortunate ending led to this appeal.

Alfred B. Williams was a Youth Development Counselor I, regular status, at Youth Forestry Camp No. 3, located in Huntingdon County. This camp is in a rural setting with no confining fence or barrier. To leave the camp area one merely has to walk away. This physical setting, which is the antithesis of a maximum security institution, is deliberately so designed to contribute to an atmosphere, for rehabilitation of the youthful offender, which will redirect the students by reasonable persuasion, trust, and the development of a relationship of confidence resulting from daily and close personal contacts between counselors and students.

*447Appellant reported for work at 11:45 p.m. on September 19, 1971 and soon thereafter, during the early morning hours of September 20, 1971, Tie discovered three students outside the building to which they had been assigned. Ascertaining that they were contemplating an escape, he took them to the main office where they were subsequently joined by a fourth student who admitted that he had planned to leave with the other three. Appellant then spent more than two hours talking to the boys and only after becoming convinced that they had abandoned, at least for the present, their plans to leave the camp, did he accompany the boys to their room. One of the boys was normally housed in another wing of the same building and the record discloses a dispute as to whether appellant was aware of this fact. In any event, appellant left the boys and returned to the office and thereafter he again checked on the boys and discovered that they had left their room and the camp.

Subsequently, appellant received a letter of dismissal under date of October 26, 1971, in which the reasons for dismissal were stated as follows: “You in the early morning of September 20, 1971, were grossly negligent in your handling of a situation in which four students absconded from Dormitory B, Youth Forestry Camp #3, in a stolen state vehicle. Having prior knowledge of their planned runaway, you did not take the appropriate and necessary action in terms of preventive measures. Illustrative of this is that you permitted all four students to sleep in the same dormitory wing fully clothed even though you were aware that one student was assigned to the opposite wing of the building. You also used extremely poor judgment in the manner in which you counseled them concerning the situation. As a result of this negligence, these students broke into the administration building and then stole a state owned *448vehicle, endangering both themselves and the public in general.”

Appellant appealed his dismissal to the State Civil Service Commission which, by order dated March 21, 1972, sustained appellant’s dismissal by the Department of Public Welfare and dismissed his appeal. He then appealed here from the order of the State Civil Service Commission and contends that his dismissal was not based upon substantial evidence of “just cause.”

The only findings of fact made by the Commission which are relevant to its adjudication and which could possibly support its conclusions of law that appellant was removed for just cause were those numbered 7 through 11. The first three of these crucial findings of fact are as follows:

“7. Appellant was aware that four students had plans to abscond.

“8. The four students had a history of absconding.

“9. Appellant found three of the students outside the dormitory; they returned to the office with him and were joined by a fourth student who stated he also planned to abscond.”

I view these three findings to establish (1) that due to appellant’s alertness and diligence he uncovered and thwarted the students’ initial plan to abscond from the camp and (2) that he was thus aware of their plans in this regard. I do not comprehend how any of these findings support any determination of gross negligence on the part of appellant. They do establish the circumstances with which appellant was confronted and serve as a point of departure when one evaluates what next transpired.

Findings of fact numbered 10 and 11 read:

“10. After talking with the students, appellant failed to take any further precautions to prevent an *449abscondence including making certain the students removed their clothes on returning to bed.

“11. Appellant failed to observe that one of the four students did not return to his own bed in another wing, but took a vacant bed in the room with the other three students.”

The question remains as to whether these two findings support the Commission’s conclusion that appellant was dismissed for just cause because he was grossly negligent. Appellant is held accountable for not removing the students’ clothing and for not observing that one of the four students failed to return to his own bed. The assumption of the Commission must be that if one or both of these things would have happened the eventual escape would not have occurred. I cannot be as certain of this assumption since it seems as likely that the fourth student could have easily rejoined his friends even if he had been placed in his own bed, and it would not appear to have been difficult for the students to have redressed, even if they would have been required to remove their clothes on returning to bed.

Gross negligence is heedless and reckless disregard of others and includes elements of conscious indifference of consequences of one’s actions. It means the omission of care which even the most inattentive and thoughtless seldom fail to take of their own concerns. Inadvertence is not gross negligence. Perhaps no specific rule can be laid down as to what constitutes gross negligence since each case depends on its particular facts or circumstances, but it may be said with certainty that gross negligence is substantially and appreciably higher in magnitude than ordinary negligence and that it is materially more want of care than inadvertence. I do not believe, under the facts of this case, that appellant, who spent more than two hours at*450tempting to defuse the escape, was chargeable with gross negligence.

I think it is highly important to keep in mind that there were admittedly no written regulations or established operating procedures to be followed relative to absconding students. The record shows that the personnel of this camp had discussed, at meetings attended by appellant, a number of measures which could be considered to prevent future escapes. These measures ranged from calling the director of the camp, holding a dormitory meeting, removing from students their shoes, to requesting a student designated as a junior counselor to assist the counselor. However, it was also clear from an examination of the record that it remained for each counselor to decide in accord with his experience and judgment what course of action to follow when confronted with a possible escape problem. Appellant, after two hours of discussion and with a background of eight years’ experience, made a judgment decision to return the students to their rooms, to call another dormitory supervisor, and to make periodic visual checks on the students during the few hours that remained before daybreak. The subsequent escape made this judgment decision ineffective, and hindsight would understandably indicate that something more could have been done.

Appellant, unlike a jailer, being a counselor in an open institutional setting, should not be found grossly negligent for dealing with a situation in terms of trust and not force, in the absence of any directives other than the utilization of his experience and the exercise of his best judgment and discretion. One might query whether appellant’s superiors, faced with a history of past escapes, were not themselves grossly negligent for not having erected a confining fence or barrier to better frustrate future attempts to escape. The answer to *451such a query might well be in the negative, since the main purpose for a youth forestry camp is to rehabilitate and develop good character in youthful offenders, rather than to confine them in a given area. The building of a fence or removing clothing are measures separated only by degree when one views from a position of hindsight what should have been done to hinder absconding students. I do not see appellant’s action as an example of perfection, but likewise I do not view it as constituting gross negligence and supporting a legal conclusion that he was dismissed in accordance with the legal test of just cause.

The Commission did not have before it substantial evidence that appellant had failed to properly execute his duties or was grossly negligent in his handling of a situation which preceded the escape of four students from Youth Forestry Camp No. 3 and therefore could not uphold appellant’s dismissal from his position as a Youth Development Counselor I. Since the findings of fact made by the Commission do not support its conclusions of law and adjudication, I must dissent.