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HomeMy WebLinkAbout2004-1346 Civil THOMAS L. DAY, JR. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL SERVICE COMMISSION OF THE BOROUGH OF CARLISLE V. BOROUGH OF CARLISLE 04-1346 CIVIL TERM IN RE: APPEAL FROM ORDER OF THE CIVIL SERVICE COMMISSION OF THE BOROUGH OF CARLISLE BEFORE BAYLEY. J. OPINION AND ORDER OF COURT Bayley, J., February 11, 2005:-- On May 8, 2003, Thomas L. Day, Jr., a corporal with fifteen years of service in the Borough of Carlisle Police, was dismissed by the Carlisle Borough Council. Day appealed to the Civil Service Commission of the Borough of Carlisle. He requested a public hearing that was denied. After conducting six closed hearings, the Civil Service Commission, on March 1, 2004, entered an order, supported by a written opinion, upholding the dismissal of Dayan the grounds of "disobedience of orders," and "conduct unbecoming an officer." Day filed an appeal in this court. The Borough of Carlisle intervened. No additional evidence was taken. The issues were briefed and argued on September 22, 2004. The standard of review is set forth by the Commonwealth Court of Pennsylvania 04-1346 CIVIL TERM in Moorehead v. Civil Service Commission of Allegheny County, 769 A.2d 1233 (Pa. Commw. 2001): Where a full and complete record is made of the proceedings before a municipal civil service commission, a reviewing court must affirm the adjudication unless it violates constitutional rights, is not in accordance with the law, it violates the procedural provisions of the local agency law, or the commission's findings are not supported by substantial evidence. Section 754 of the Local Agency Law, 2 Pa.C.S. S 754; Civil Service Commission v. Poles, 132 Pa. Cmwlth. 593, 573 A.2d 1169 (1990), petition for allowance of appeal granted, 527 Pa. 657, 593 A.2d 427 (1991), appeal dismissed, 530 Pa. 31, 606A.2d 1169 (1992). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. A reviewing court will examine, but not weigh, the evidence since the commission, as fact finding tribunal, is in a better position to discover the facts based upon the testimony and the demeanor of witnesses. Id. The court may not substitute its judgment for that of the commission. Id. A summary of the facts found by the Civil Service Commission that support its decision are as follows. On January 3,2002, Day attended a meeting for police supervisors conducted by Carlisle Borough Police Chief Stephen Margeson. The purpose of the meeting was team building and management training for the ranking members of the Carlisle Police Department. Margeson reviewed the Department's mission statement, and discussed how to handle disagreements and complaints within the Department. He said that officers were not to openly ridicule or complain about others, but to take complaints through the proper channels. Contrary actions would be considered conduct unbecoming an officer. In late January, 2003, Corporal Day, in his own words, "blew-up" in front of two subordinates, Patrolman Haggerty and Dispatcher Burns, and a superior, Sergeant Guido. The incident occurred in the communications -2- 04-1346 CIVIL TERM room of the Carlisle Police Department. Day accused Detective Smith, of the Carlisle Borough Police, of holding a gun to Smith's girlfriend's head, falsifying time records, and taking money and drugs during an investigation. He said that Chief Margeson knew about Smith's conduct, and covered it up. After an internal investigation, Margeson determined that Day's allegations were unsubstantiated. The Chief had prior knowledge of an investigation conducted by the Cumberland County District Attorney regarding the allegations of the theft of money and drugs. That investigation exonerated Smith. Margeson reviewed a police report from another jurisdiction of the alleged incident with a gun that had occurred five years earlier. That investigation concluded that no gun was pointed at the woman's head by Smith, and that she did not feel threatened by him. Based on his investigation, Margeson met with Dayan April 24, 2003, and told him his findings. In a letter dated April 24,2003, Margeson informed Day that he would institute discipline, which he did, and set forth that any repetition of his behavior or other misconduct will result in termination. Three days later on April 27,2003, Day attended a meeting of his Union, the Carlisle Police Association. During the meeting he requested financial support to defend against the pending discipline. The request was tabled. After the meeting was closed, some officers in the Department asked Day the reasons for the pending discipline. Day said that he did not want to discuss things in front of certain officers, and waited until they left. Then to three subordinate officers, Parson, Heredia and Brewbaker, Day repeated the allegations he made in the communications room earlier -3- 04-1346 CIVIL TERM in the year. He further said that the name of Matthew Walters had been deleted from the Metro files, which is the Police Department's computer data system, that only two officers, Lieutenant Pfahl and Lieutenant Walters, who is Matthew's father, could make the deletion, and that Pfahl had told him that he did not do it. Day told the officers they could draw their own conclusions as to who did it. He alleged that the deletion of the name from the Metro files was tampering with official records, and something to the effect of "tell me that ain't a crime." Officer Parson informed Lieutenant Walters of the conversation who reported it to Chief Margeson. After conducting an internal investigation, Margeson initiated disciplinary proceedings against Day for this incident. The Metro system is a police computer system utilized by thirty-eight law enforcement agencies in the Harrisburg area. It is not available to the general public. There are two levels of entries into the system: the dispatch section and the field report section. The ability to make changes or to delete data is restricted to members of the Police Department. While any officer in the Department may make changes or deletions to the dispatch entries, only the Department's two lieutenants may delete items from field reports. A master log, maintained in Harrisburg, indicates how a file appeared before and after changes or deletions. A deletion of the name of Matthew Walters from a dispatch entry was made by Sgt. Dzezinski of the Carlisle Police Department. He deleted the name following a vehicle stop for which no citation was issued. Lieutenant Walters never made any changes or deletions in the system regarding his son Matthew. -4- 04-1346 CIVIL TERM The Civil Service Commission made the following decision: As to the charge of disobedience of orders, the Borough established that Margeson had clearly outlined the proper manner in which to address complaints against fellow officers during the Shaffer Park meeting of police supervisors held in January 2002. Based upon the evidence submitted, the Commission concludes that Day disobeyed this command twice. First, Day disobeyed Margeson's directive when he made allegations against Smith to subordinates during a January, 2003 conversation with Sergeant Guido, Dispatcher Burns and Patrolman Haggerty in the communications room. Both Dispatcher Burns and Patrolman Haggerty were subordinate to Corporal Day. Second, Day disobeyed Margeson's order on April 27, 2003, when he repeated the allegations against Smith and implied to patrolmen Heredia, Brewbaker and Parson that Lt. Walters deleted files from the Metro system. Based upon this conduct, Council was justified in terminating Day's employment. Furthermore, the evidence before the Commission established that Day's conduct after the Union meeting on April 27, 2003 directly contradicted the directive that Margeson imposed on Day three days earlier, on April 24, 2003. Specifically, after the incident in the communications room, Margeson reminded Day of the appropriate manner for an officer to raise his concerns about questionable conduct by other officers, or dissatisfaction with department matters. Nonetheless, Day ignored this order and again made allegations against superior officers in front of subordinates after the Union meeting. As a result, it was also appropriate for the Borough to terminate Day's employment for his failure to obey Margeson's order of April 24, 2003. The evidence presented by the Borough likewise supports the charge that Day engaged in conduct unbecoming an officer. As stated previously, conduct unbecoming may include any action which "adversely affects the morale and efficiency of the police force or tends to destroy public respect for, and confidence in, the police force." [Feliciano v. Borough of Norristown, 758 A.2d at 295 (Pa. Commw. 2000)]. The Commission has determined that during two separate instances, Day alleged that one or more members of the Department engaged in criminal or quasi-criminal conduct. The Commission finds Day's behavior could, and in fact did create feelings of doubt among other officers and affect the morale of the Department. For this reason, Day's actions plainly fall within the realm of unbecoming conduct, for which termination is an appropriate penalty. This conclusion is underscored by -5- 04-1346 CIVIL TERM the fact that Margeson not only warned his supervisory officers during the January 2002 Shaffer Park meeting that airing complaints outside the proper channels would be considered conduct unbecoming, but Margeson explicitly warned Day in his April 24, 2003 letter that the consequence of engaging in similar behavior would be termination. (Emphasis added.) We will review the issues raised by Day in this appeal from the order of the Civil Service Commission dated March 1, 2004. I. THE NOTICE ISSUE. The Borough Code sets forth the statutory grounds for a Borough Council to remove a police officer. 53 P.S. S 46190. They include, "disobedience of orders or conduct unbecoming an officer." Id. During the hearings before the Civil Service Commission, Day objected to the introduction of any evidence concerning his conversations in the communications room with Patrolman Haggerty, Dispatcher Burns and Sergeant Guido in late January, 2003. He maintained that his conduct on that occasion was outside the scope of the charges against him. The objection was overruled. On May 9, 2003, Borough Council notified Day in writing of its decision to dismiss him from the police force. The letter, Exhibit C-1, set forth: You are advised that the Carlisle Borough Council, in the presence of your legal counsel, and by motion duly make and seconded during a public meeting held on Thursday, May 8,2003, unanimously voted to dismiss you from the Carlisle Police Department. As cause for dismissal, the Borough Council adopted and concurred with the charges outlined in the letter to you from Chief Margeson, dated May 6, 2003; a copy of that letter is attached and incorporated herein by reference. At that meeting, Mayor Wilson indicated his concurrence in -6- 04-1346 CIVIL TERM the charges outlined, and conveyed his recommendation for dismissal. Specifically, the Borough Council has determined that you engaged in conduct unbecoming an officer and that you disobeyed orders. (Emphasis added.) The attached letter of May 6, 2003 from Margeson to Day, set forth: As you are aware an investigation into possible misconduct on your part was recently initiated. I informed you of this investigation when we met on May 5, 2003. I informed you there was the potential of disciplinary action being taken against you if the alleged misconduct was substantiated. This investigation has been completed. I have concluded that you did engage in misconduct. Specifically, I have determined that you committed the following offenses: 1. Conduct Unbecoming an Officer 2. Disobedience of Orders The facts supporting this determination are as follows: On April 27, 2003 at the Union Fire Company following a Police Association meeting, you accused Lt. Barry Walters of the Carlisle Police Department of deleting or altering Metro files (the official Carlisle Police Department computerized record system) in which his son Matthew was entered, in effect removing the name of Matthew Walters from official department records. You made this accusation to three (3) Carlisle Police Department patrol officers. The allegation that Lt. Walters deleted or altered records or had any file or record involving his son deleted or altered was investigated and is totally unfounded. By making these accusations you accused Lt. Walters of misconduct and possible criminal conduct. Such accusations to junior officers undermine Lt. Walters, the Chain of Command and is an assault on the character of Lt. Walters. This constitutes Conduct unbecoming an Officer. The same actions support a charge of Disobedience of Orders. When we met on April 24, 2003 I directed you to use caution in what you said, how you said it and who you said it to regarding actions that may be taken against you. You were further advised, in writing, "that any repletion of this behavior or other misconduct on your behalf will result in dismissaL" Once again I am extremely disappointed that you would engage in such conduct, especially after our April 24,2003 meeting. Your actions on April 27, 2003 were again detrimental to the good of the order of the police department and in fact disruptive to the efficient operation of the -7- 04-1346 CIVIL TERM department. Your actions continue to undermine the Chief of Police and Chain of Command. As a result of my determination, I have recommended to Mayor Wilson that you be dismissed from the Carlisle Police Department. The Mayor supports my recommendation and will so recommend to Borough Council. (Emphasis added.) The referenced letter of April 24, 2003, from Margeson to Day, Exhibit B-7, set forth: As you are aware, an investigation into a case of possible misconduct on your part was initiated recently. I informed you of this when we met on March 28, 2003. I also informed you there was the potential of disciplinary action being taken against you if the alleged misconduct was substantiated. Having completed this investigation, I have concluded that you did engage in misconduct. Specifically, I have determined that you committed the following offenses: 1. Conduct Unbecoming an Officer 2. Disobedience of Orders 3. Neglect or Violation of Official Duty The facts supporting this determination are as follows: In the latter part of January 2003, while on duty in the Carlisle Police Department Communications Room, in the presence of Sgt. Michael Guido, Officer John Haggerty and Dispatcher Robin Burns, you made allegations of criminal conduct and misconduct against Detective David Smith and others. You specifically said the following: 1. Det. Smith had stolen money from a drug investigation. 2. Det. Smith had committed fraud by padding his hours when he was in fact working outside employment at a water plant security job. 3. Det. Smith had held a gun to the head of a former girlfriend and threatened to kill her. You further stated "I know for a fact she reported it to the Chief and he did nothing." Additionally you stated that Detective Nester and Lt. Walters do the department internal investigations and they cover for their friends, and they will allow the right people to get away with anything. You made these statements in a loud, boisterous manner, or in your words you "blew up." In essence, you made criminal and misconduct allegations against -8- 04-1346 CIVIL TERM Detective Smith, then accused the Chief of Police, Lt. Walters and Detective Nester of misconduct by knowingly covering it up and neglecting to take appropriate action when we were aware of criminal conduct and misconduct on the part of Detective Smith. I believe the evidence clearly supports my conclusion in this matter. I am especially disappointed that you, holding a supervisory position, would engage in such conduct. Your actions were unacceptable and constitute Conduct Unbecoming an Officer. Your actions are detrimental to the good order of the department and potentially disruptive to the efficient operation of the department. Your actions undermine the Chief of Police and Chain of Command. I also concluded that you committed the offense of Neglect of Official Duty and Disobedience of Orders based upon the fact that at multiple command staff meetings you and other department members who hold leadership positions within the department have been specifically directed by me as to the appropriate manner in which to handle matters involving problem behavior of other officers, dissatisfaction on your own part regarding department matters or making negative comments about the department or department members. You and other department supervisors have been directed as to the proper manner to raise concerns and complaints about department members and department operations. Your actions in the case at hand were contrary to what is expected and acceptable on the part of supervisory officers of the Carlisle Police Department. In our meetings on this incident it appeared to me you [sic] that you did not grasp that what you did was improper. I cannot emphasize strongly enough how improper I think your actions were. As a result of my determination, I have recommended to Mayor Wilson that you be demoted to the rank of patrol officer and receive three (3) day suspension without pay. The Mayor concurs with my recommendation and will in fact make such recommendation to Borough Council. I must also state that any repetition of this behavior or other misconduct on your behalf will results in dismissal. (Emphasis added.) In City of Harrisburg v. Pickles, 89 Pa. Commw. 155 (1985), the City of Harrisburg appealed a decision of an order of the Court of Common Pleas of Dauphin County which reversed a decision of the Harrisburg City Council dismissing Officer Pickles from his position with the Bureau of Police of the City of Harrisburg. City -9- 04-1346 CIVIL TERM Council found that Pickles was guilty of: (a) conduct unbecoming an officer, because, after stopping behind the suspect vehicle he exited his car, "instead of assuming a back-up position of cover or concealment. . . ."; (b) failure to comply with orders, directives, and regulations, (although Council did not specify what orders, directives, and regulations he failed to follow); and (c) improper use, handling or display of firearms. Council, in its determination of this last charge, relied upon Public Safety Directive No.5 which announces the policy that an officer "exhaust all other reasonable means of apprehension and control before resorting to use of deadly force and further provides "[i]t is also the policy of the Bureau that members will not necessarily or unreasonably endanger themselves in applying these guidelines to actual situations." Additionally, Council considered the directive's establishment of the defense of justification "when necessary to prevent death or serious bodily injury to the officer or another. . . ." Council found, however, that no such justification existed, rejecting Officers Pickles' contention that the suspect had turned toward him with an object in both hands, thus causing Pickles to fire in self-defense. On appeal, the trial court determined that the notice of the charges given to Pickles was insufficient to comport with due process. The Harrisburg City Council had notified Pickles of the charges by a letter dated March 17, 1983, which set forth: You are being charged with the following violation of the Disciplinary Code of the Harrisburg Police Bureau. . . : ARTICLE I-Conduct Unbecoming an Officer Section 1.12-Repeated violations of departmental rules and regulations or other course of conduct indicating that a member has little or no regard for hislher responsibility as a member of the Bureau of Police. ARTICLE IV-Neglect of Duty Section 4.05-Failure to comply with any Police Chief's or Director of Public Safety Orders, Directives, Regulations, etc., or any oral or written orders of superiors. ARTICLE V-Disobedience of Orders Section 5.09-lmproper use, handling or display of firearms. The Commonwealth Court stated: -10- 04-1346 CIVIL TERM For guidance in determining what type of notice should be afforded a discharged civil servant, we look to civil service law. In Wood v. Department of Public Welfare, 49 Pa. Commonwealth Ct. 383, 411 A.2d 281 (1980) this Court held that a removal notice which gave as the reason for the personnel action "contained unsatisfactory work performance" was insufficient to demonstrate compliance with a State Civil Service Commission regulation requiring an adequate explanation for the removal of a regular status employee. In Wood, we recognized that while a "removal notice need not be drafted with the certainty of a bill of indictment," it must "be framed in a manner which enables the employee to discern the nature of the charges and adequately to prepare a defense." Id. at 386, 411 A.2d at 283. Although the City is not subject to State Civil Service Commission regulations, it, too, must provide adequate due process notice. (Emphasis added.) The Court, concluding that Pickles did not have adequate due process notice, stated: The charges in the March 17, 1983 letter apprise Officer Pickles of virtually nothing. The first two charges in particular provide Pickles with no more information than that given to the employee in Wood. Certainly a defense could not be adequately prepared based upon such scant information. (Emphasis added.) In the case sub judice, while the written charges are convoluted because of reference to other documents in the notification of dismissal by Borough Council dated May 9,2003, we are satisfied, that unlike the facts in Pickles, Day was informed not only of the statutory grounds against him, but the reasons in support of those grounds. The May 9,2003 notice of dismissal made reference to Borough Council concurring in the charges outlined in the letter to Day from Chief Margeson dated May 6, 2003. That letter specifically sets forth not only the alleged facts of the incident after the meeting of the Carlisle Police Association on April 27,2003, but also that Margeson advised Day -11- 04-1346 CIVIL TERM in writing on April 24,2003, that he was going to seek disciplinary action against him based on a letter written to Day that date. That April 24th letter sets forth the specific facts as to the incident in the latter part of January, 2003 in the communications room of the police department. When Day was given that letter on April 24th, Margeson also told him he was going to seek discipline based on the communications room incident as set froth in the letter. Accordingly, Day received written notice of the charges relating to the incident in the communications room that was presented to Borough Council. The notice was constitutionally sufficient, and the Civil Service Commission properly reviewed those charges in Day's appeal from his dismissal by Borough Council. II. THE CLOSED HEARING ISSUE. Day filed a written request before the Civil Service Commission for an open public hearing, which was denied. He maintains that was a denial of procedural due process, and his right under the Pennsylvania Sunshine Act, 65 Pa.C.S. SS 701-716, to an open hearing.1 Article IX of the General Municipal Law, providing for removal of policemen, sets forth at 53 P.S. S 811, that the Act applies to the removal of policemen of each Borough having a police force of less than three members and not to policemen subject to "the Borough Code." Under that General Municipal Law, those policemen are entitled to a public hearing before an appointing authority. 53 P.S. S 814. The 1 Day does not complain of the way in which the formal action was taken by the Civil Service Commission in upholding his dismissal from the police department. Such formal action is required under the Sunshine Act to be taken at a public meeting. City of Harrisburg v. Pickles, supra. -12- 04-1346 CIVIL TERM Borough Code, however, is applicable to the Borough of Carlisle which has a police force of more than two members. The Code provides at 53 P.S. S 46191: If the person. . . removed shall demand a hearing by the [civil service] commission, the demand shall be made to the commission. . . the commission shall grant him a hearing. . . a stenographic record of the testimony taken at such hearing shall be filed with, and preserved by, the commission. This section, which is silent as to whether a hearing before a civil service commission is open to the public, was discussed in Schmidt v. Borough of Baldwin, 82 Pa. Commw. Ct. 580 (1984). Appellant, a policeman in the Borough of Baldwin, was discharged by the Borough. The officer appealed to a civil service commission. The commission held an open hearing over the objection of the officer who claimed it was error not to grant his request for a closed hearing under Section 46191 of the Borough Code. The commission then vacated the discharge and imposed a one year suspension in its place. The Allegheny County Court affirmed the decision of the commission. Both parties appealed to the Commonwealth Court, which concluded: A simple reading of the statute refutes Appellant's claim. The charges were not dismissed, obviating any reliance which Appellant attempts to place on the section. The decision of the Commission to conduct an open hearing must stand absent a showing of an abuse of discretion. (Emphasis added.)2 As to Day's procedural due process claim, the Supreme Court of the United States in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2 18 (1976), set 2 There was no discussion of the Sunshine Act, presumably because there was a public hearing. -13- 04-1346 CIVIL TERM forth the following factors to be considered in weighing the sufficiency of procedural due process: "(1) the private interest that will be affected by official action; (2) the risk of erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute safeguards; and (3) the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." There is nothing in the record to conclude under the second prong that the closed hearings detrimentally affected the process that Day was afforded. A complete record was made as required by law. That record is now in the public realm. Day's right to appeal is guaranteed. The Sunshine Act, 65 Pa.C.S. SS 701-716, at Section 702, provides: (a) Findings.- The General Assembly finds that the right of the public to be present at all meetings of agencies and to witness the deliberation, policy formulation and decisionmaking [sic] of agencies is vital to the enhancement and proper functioning of the democratic process and that secrecy in public affairs undermines the faith of the public in government and the public's effectiveness in fulfilling its role in a democratic society. (b) Declaration.- The General Assembly hereby declares it to be the public policy of this Commonwealth to insure the right of its citizens to have notice of and the right to attend all meetings of agencies at which any agency business is discussed or acted upon as provided in this chapter. (Emphasis added.)3 Section 704 of the Act provides: Official action and deliberations by a quorum of the members of 3 See Kennedy v. Upper Milford Township Zoning Hearing Board, 834 A.2d 1104 (Pa. 2003), as to this public policy. -14- 04-1346 CIVIL TERM an agency shall take place at a meeting open to the public unless closed under section 707 (relating to exceptions to open meetings), 708 (relating to executive sessions) or 712 (relating to General Assembly meetings covered). (Emphasis added.) At Section 703, the definition of "Agency" includes a commission of a political subdivision that includes a municipal body. "Agency business" is defined as: The framing, preparation, making or enactment of laws, policy or regulations, the creation of liability by contract or otherwise or the adjudication of rights, duties and responsibilities, but not including administrative action. (Emphasis added.) A "Meeting" is defined as: Any prearranged gathering of an agency which is attended or participated in by a quorum of the members of an agency held for the purpose of deliberating agency business or a taking of official action. (Emphasis added.) "Official action" includes: (1) Recommendations made by an agency pursuant to statute, ordinance or executive order. (2) The establishment of policy by an agency. (3) The decisions on agency business made by an agency. (4) The vote taken by any agency on any motion, proposal, resolution, rule, regulation, ordinance, report or order. (Emphasis added.) The Civil Service Commission of the Borough of Carlisle is an Agency because it is a commission of a political subdivision. Its agency business in this case was the adjudication of the rights of Officer Day as to his dismissal as a police officer by the Borough of Carlisle.4 The issue is whether the hearings in that adjudication were a 4 Black's Law Dictionary, th Ed. 1999 defines "adjudication" to include, "The legal process of resolving a dispute; the process of judicially deciding a case." -15- 04-1346 CIVIL TERM "meeting" of the Commission held for the purpose of "deliberating agency business or a taking of official action" which requires, under Section 704, that it be open to the public unless closed under Sections 707,708 or 712. The Civil Service Commission and the Borough of Carlisle argue that we need not address the "meeting" issue because even if the Commission hearings constituted a "meeting" in which it deliberated agency business, they were properly conducted in closed executive sessions under Section 708. Section 708 provides: (a) Purpose.-An agency may hold an executive session for one or more of the following reasons: (1) To discuss any matter involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of performance, promotion or disciplining of any specific prospective public officer or employee or current public officer or employee employed or appointed by the agency, or former public officer or employee, provided, however, that the individual employees or appointees whose rights could be adversely affected may request, in writing, that the matter or matters be discussed at an open meeting. The agency's decision to discuss such matters in executive session shall not serve to adversely affect the due process rights granted by law, including those granted by Title 2 (relating to administrative law and procedure). The provisions of this paragraph shall not apply to any meeting involving the appointment or selection of any person to fill a vacancy in any elected office. (Emphasis added.) Day was not an employee or public officer or former employee or public official appointed by the Civil Service Commission. To characterize the Commission's hearings on his appeal as discussions involving his employment or discipline is not a reasonable interpretation of an executive session under Section 708. The Commission hearings constituted an adjudication, not discussions. -16- 04-1346 CIVIL TERM In its brief, the Civil Service Commission cites three cases in support of the position that its decision "to conduct an open hearing must stand absence a showing of abuse of discretion." Preston v. Saucon Valley School District, 666 A.2d 1120 (Pa. Commw. 1995), does not support its position because the issue was whether a private vote of a school on an addendum providing for a salary increase was unenforceable under the Sunshine Act. Mirror Printing Company, Inc. v. Altoona Area School Board, 148 Pa. Commw. 168 (1992) does not support the Commission's position because it involved the refusal to disclose the basis of an agreement negotiated in a properly held executive session of a school board concerning disciplinary action against its teacher. In Jeske v. Upper Yoder Township, 44 Pa. Commw. Ct. 13 (1979), a police officer appealed from an order of the Court of Common Pleas of Cambria County affirming his dismissal from the Upper Yoder Township Police Department. The board of supervisors met in an executive session to consider charges by the police chief that the policeman should be dismissed. During that session they fixed a date for a hearing on the charges and suspended the officer pending that hearing. The officer requested a public hearing which was granted. After the public hearing, the board dismissed the officer. On appeal the officer claimed that the board violated the Sunshine Act by initially voting to suspend him in executive session. At the time, the Sunshine Act at 65 P.S. Section 262 provided that "[n]o formal action shall be valid unless such formal action is taken during a public meeting." Section 263 authorized an executive session during a properly constituted public meeting for the -17 - 04-1346 CIVIL TERM purpose of "[c]onsidering dismissal or disciplining of, or hearing complaints or charges brought against a public elected officer, employee, or other public agent unless such person requests a public hearing." The Commonwealth Court concluded that the decision to suspend the officer, pending the outcome of the public disciplinary proceedings, was authorized by the General Municipal Law at 53 P.S. S 814. Therefore, Jeske does not support the Commission's position. The legislature, in defining a "meeting" in the Sunshine Act could easily have included an "adjudication" or "hearing" in its definition.5 Looking at the Act as a whole and the definition of "meeting" specifically, we conclude that a hearing is not a "meeting" held for the purpose of "deliberating agency business or a taking of official action." The Commission deliberated after the six hearings were concluded, and then took official action by voting to uphold the dismissal of Day by Borough Council. Accordingly, there is no requirement under the Sunshine Act that the hearings conducted by the Civil Service Commission be open to the public. Since the Borough Code at 53 P.S. 46191 is silent as to whether the hearings before a Civil Service Commission are open or closed to the public, and since the charges upon which Borough Council dismissed Day involved allegations of wrongful conduct on the part of other officers of the police force, and the inner workings of the Department, the decision of the Civil Service Commission to conduct closed hearings 5 For example, the Pennsylvania Municipalities Planning Code at 53 P.S. Section 10908 governs "Hearings" before zoning hearing boards. -18- 04-1346 CIVIL TERM was not an abuse of discretion. As it turned out, the allegations Day made were determined to be unsubstantiated. All of the Commission's findings have now become public. III. THE SEQUESTRATION ISSUE. Day claims that he was prejudiced by the refusal of the Civil Service Commission to sequester Chief Margeson during the hearings. Margeson was the last government -19- 04-1346 CIVIL TERM witness. Borough Council designated Margeson as its representative before the Commission as allowed by 2 Pa.C.S. Section 552, which provides, "Any party may be represented before a local agency." The Civil Service Commission did not abuse its discretion in not sequestering Borough Council's representative and the officer who brought the charges against Day. IV. THE SOLICITOR ISSUE. The Civil Service Commission was represented by an independent attorney retained by Borough Council pursuant to the Borough Code at 53 P.S. S 46116, which provides: The legal matters of the borough shall be under the control of the borough solicitor, and no department or officer of the borough, except as here and otherwise provided shall employ an additional counsel without the assent or ratification of the council. . . The assignment of independent counsel to the Commission complied with the law and Day's right to due process. See Donnon v. Downingtown Civil Service Commission, 3 Pa. Commw. 366 (1971). V. THE DOCUMENTS ISSUE. During the hearings, the Solicitor for the Borough Council introduced into evidence Exhibit B-7, which were minutes of a Borough Council meeting on May 8, 2003. The Solicitor gave Day's counsel a copy of the minutes. Exhibit B-7 contained an eighteen page attachment, not included in the copy given to Day, that was inadvertently included by the Solicitor. Exhibit C-18. All parties agree the eighteen -20- 04-1346 CIVIL TERM pages were not properly before the Commission. Before the error was discovered, the members of the Commission reviewed the eighteen pages. Subsequently, Day learned what happened, at which time he moved for dismissal of the charges, or in the alternative, a "mistrial." He later filed a motion for recusal of the members of the Commission. All relief was denied. Day maintains that the improperly disclosed information created bias, and the remedy now is that the case should be dismissed, or a new hearing granted before a new Civil Service Commission. In its opinion, the Commission dealt with the issue as follows: As indicated previously on the record, the members of this Commission find that they are able to render an impartial and unbiased decision in this appeal despite having reviewed the contested eighteen pages. (N.T. 8/12/2003 at 718-721). One of the duties of any Civil Service Commission is to rule on the admissibility of evidence. Under Day's counsel's legal argument, any time a Civil Service Commission considers and then rejects a document as inadmissible, that Commission is irrevocably tainted and can no longer sit and continue to hear the case. Common sense requires us to reject this argument. Moreover, counsel for Day has identified no substantive basis related to the content of these eighteen pages on why the Commission's review of the contested documents would disqualify them from continuing to hear this case. In addition, assuming arguendo that the members of the Commission were prejudiced by the contested eighteen pages of documents, the Commission concludes that the Rule of Necessity would preclude the members of the Commission from recusing themselves. See Stroudsburq Area Sch. Dist. v. Kellv, 701 A.2d 1000, 1003 (Pa. Cmwlth. 1997). The Rule of Necessity provides that "when all members of a tribunal or so many that there is not a quorum are subject to recusal, the tribunal must consider the case despite the personal interest or bias of its members, because otherwise the agency could not carry out its duties and the litigants would be denied a decision in the matter." kL Accordingly, even if the Commission were prejudiced or biased by the contested pages, it would nonetheless render a decision on the matter, and any perceived issue of prejudice must be disposed of on appeal. -21- 04-1346 CIVIL TERM -22- 04-1346 CIVIL TERM When information is improperly received by the tribunal adjudicating the dismissal of a police officer, and that information prejudices the officer, the decision cannot stand. City of Harrisburg v. Pickles, 89 Pa. Commw. 155 (1985). Seven of the pages of the subject documents contain internal memoranda of the Carlisle Police Department regarding its investigation of Detective Smith. Three pages contain material involving the internal investigation of the Department regarding the deletion of the name of Matthew Walters from a dispatch entry after a traffic stop by Patrolman Brewbaker. Two pages, with six accompanying dispatch pages, involved an incident on December 9, 2002, reported by Lieutenant Walters to Chief Margeson. Lieutenant Walters set forth that Corporal Day investigated a complaint from a resident on West South Street regarding vehicle tracks in her yard. Day reported that Sergeant Guido had been a passenger in the vehicle when it went across the yard. Guido had been at a party where Corporal Hograth provided tests on a portable breath detector to the partygoers. Walters counseled Guido for using poor judgment during this incident, to which Guido agreed. He counseled Hograth for using bad judgment, to which Hograth agreed. Generally, the information pertaining to the investigations of Detective Smith and the deletion of the name of Matthew Walters from the dispatch entry was properly admitted into evidence through other means at other times during the hearings before the Civil Service Commission. The circumstances in which Day reported the conduct of Sergeant Guido and Corporal Hograth to Lieutenant Walters regarding the incident on -23- 04-1346 CIVIL TERM December 9, 2002, speak favorably of Day as Walters, his superior, concluded that Guido and Hograth had used poor judgment in the matter. Accordingly, we conclude that Day was not prejudiced by the Commission reviewing the eighteen pages erroneously attached to Exhibit B-7. He, therefore, is not entitled to relief. VI. THE BIAS ISSUE. Day, maintaining that there was bias throughout the proceedings before the Civil Service Commission, claims that he was denied procedural due process because the Commission was not impartial. The Local Agency Law, 2 Pa.C.S. Section 753, provides: (a) General rule.-A party who proceeded before a local agency... shall not be precluded from questioning the. . . resolution in the appeal, but if a full and complete record of the proceedings before the agency was made such party shall not raise upon appeal any other questions not raised before the agency. . . unless allowed by the court upon due cause shown. This court has previously denied Day's request to open the record for additional evidence on the issue of bias. The claim is based on Day's cumulative disagreement with various rulings of the Civil Service Commission that are all reflected in the record during the six hearings. Therefore, no due cause was shown to take additional evidence. Now, any issue of bias is waived because no objection as to bias was put on the record before the Commission. A party must raise before an administrative tribunal all legal and factual issues necessary and appropriate for determination. Stoffer v. Commonwealth of Pennsylvania, Pennsylvania State Police, 76 Pa. Commw. 397 -24- 04-1346 CIVIL TERM (1983). That includes a claim of bias. Id. VII. THE UNION ACTIVITY ISSUE. Day maintains that part of the reason for his dismissal was a violation of his right of freedom of association to participate, on April 27, 2003, in constitutionally protected union activity with the Carlisle Police Association. In order to raise such a claim, one of the tests is to demonstrate that the activity is protected. Green v. Philadelphia Housing Authority, 105 F.3d 882 (3d. Cir. 1997). The Civil Service Commission found that on April 27, 2003, when Day (1) repeated to three subordinate police officers the allegations he made in the communications room in the later part of January, 2003, and (2) implied wrongdoing involving the deletion of the name of Matthew Walters from the Metro files, the Carlisle Police Association meeting he had attended had ended. That activity having ended, his statements to subordinate officers were not protected by a right of free association with his union. VIII. THE FREEDOM OF SPEECH ISSUE. Day claims that his statements considered by the Civil Service Commission to uphold his dismissal were within the ambit of protected free speech. A determination of whether speech is protected in the employment context requires a balance between the interest of the employee as a citizen in commenting on matters of public concern, and the interest of the state as an employer in promoting the efficiency of the public services it performs through its employees. Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731,20 L.Ed.2d 811 (1968). With the exception of prior restraints -25- 04-1346 CIVIL TERM on speech, the applicable standard for all other free speech issues in Pennsylvania is the federal standard. Preate v. Cancer Fund of America, 153 Pa. Commw. 124 (1993). Day's claim of protected free speech is not raised in the context of his making statements to anyone other than officers of the Carlisle Police Department. His claims are raised in the context of his violating directives that he raise any concerns or alleged wrongdoing within the Department up the chain of command, not with subordinates. As set forth in Baldassare v. New Jersey, 250 F.3d 188 (3d Cir. 2001), a public employee's retaliation claim for the exercise of a right of free speech requires a three step analysis. First, the employee must establish that his speech was protected. This requires a showing that the speech in question related to matters of public concern, and that the employee's interest in expression outweighed the public employer's interest in promoting the efficient and effective provision of its services. Second, the employee must demonstrate that the protected activity was a substantial or motivating factor in the alleged retaliation. Third, the employer may refute a retaliation claim by showing that it would have taken the same action in absence of the protected speech. A police department is a paramilitary organization. Day was a corporal in the chain of command of the Carlisle Police Department. A governmental interest in the regulation of employee speech may include whether that speech impairs discipline by supervisors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker's duties or interferes with the regular operation of the -26- 04-1346 CIVIL TERM enterprise." Swartzwelder v. McNerlly, 297 F.3d 228 (3rd Cir. 2002). Courts have given law enforcement agencies wide latitude to regulate an employee's speech when that speech impacts an area such as discipline, morale, harmony, uniformity, and trust in the ranks. Oladeinde v. City of Birmingham, 230 F.3d 1275 (11th Cir. 2000). Day was dismissed for making allegations to subordinate officers of wrongdoing by other officers in the Carlisle Police Department. A chain of command policy regulates the time, place and manner of the expression. See Bala v. Commonwealth of Pennsylvania Unemployment Compensation Board of Review, 42 Pa. Commw. 487 (1979). By not raising complaints up the chain of command, which complaints were determined to be baseless, Day exposed the police force to functional disruption and weakening of morale. In this context, Day's interest in expression was outweighed by the Department's interest in promoting efficient and effective provision of its services. Accordingly, the speech for which Day was disciplined was not protected. IX. THE SUBSTANTIVE DUE PROCESS ISSUE. Day claims that he was denied substantive due process. If an interest is not fundamental, the "government action is entirely outside the ambit of substantive due process and will be upheld so long as the requirements of procedural due process have been met. "Nicholas v. Pennsylvania State University, 227 F.3d 133 (3rd Cir. 2000). The interest here is Day's employment as a police officer in the Borough of Carlisle. Employment is not a protected interest. Bennison v. Pennsylvania Department of Corrections, 268 F.Supp.2d 387 (M.D. Pa. 2003). Day has not been denied -27- 04-1346 CIVIL TERM substantive due process. X. THE SUFFICIENCY OF EVIDENCE ISSUE. In Amendola v. Civil Service Commission of Crafton Borough, 139 Pa. Commw. 76 (1991), the Commonwealth Court of Pennsylvania, interpreted the term "disobedience of orders" as used in Section 46190 of the Borough Code, in accordance with common and approved usage. 1 Pa.C.S. S 1903(a). The Court used a dictionary definition of "disobedience" as a "refusal to obey or neglect in obeying a command; violation or disregard of a rule or prohibition." "Conduct unbecoming a police officer" as used in Section 46190 has been defined as "[c]onduct that adversely affects the morale and efficiency of the police force and tends to destroy public respect for, and confidence in, the police force." Feliciano v. Borough of Norristown, 758 A.2d 295 (Pa. Commw. 2000). In the case sub judice, using these standards, the Civil Service Commission weighed the credibility of all of the evidence and the testimony of witnesses. Day, not unexpectedly, disagrees with many of the findings of the Commission. These findings, however, are based on relevant evidence that a reasonable mind might accept as adequate to support a conclusion. The findings of the Civil Service Commission show that Day, for whatever reasons, was not satisfied with decisions that had been made regarding several incidents involving other members of the Department. That led to his making allegations of wrongdoing to subordinate officers in the communications room that had been determined in other investigations to be baseless. He also made an allegation of -28- 04-1346 CIVIL TERM a cover-up by the Borough police chief, when there had been none. Three days after being told he would be disciplined for this conduct, he, nevertheless, repeated to subordinate officers the baseless allegations he made in the communications room, and additionally implied that a Lieutenant had wrongfully deleted his son's name from the Metro system, another baseless allegation. The substantial evidence supports the findings of the Civil Service Commission that Day failed to follow orders that any concerns about other officers in the Department be made up the chain of command, not to subordinates. The evidence also supports the finding of the Commission that Day's actions constituted conduct unbecoming an officer. Having concluded on a full and complete record made of the proceedings before the Civil Service Commission that its adjudication, (1) did not violate Day's constitutional rights, (2) is in accordance with the law, (3) did not violate any procedural provisions of the Local Agency Law, and (4) is supported by substantial evidence, the following order is entered. ORDER OF COURT AND NOW, this day of February, 2005, the appeal of Thomas L. Day from an order of the Civil Service Commission of the Borough of Carlisle dated March 1, 2004, IS DISMISSED. By the Court, -29- 04-1346 CIVIL TERM -30- Edgar B. Bayley, J. 04-1346 CIVIL TERM Joseph D. Buckley, Esquire F or Thomas L. Day Joseph C. Rudolf, Esquire For the Civil Service Commission Edward L. Schorpp, Esquire For Borough of Carlisle :sal -31- THOMAS L. DAY, JR. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL SERVICE COMMISSION OF THE BOROUGH OF CARLISLE V. BOROUGH OF CARLISLE 04-1346 CIVIL TERM IN RE: APPEAL FROM ORDER OF THE CIVIL SERVICE COMMISSION OF THE BOROUGH OF CARLISLE BEFORE BAYLEY. J. ORDER OF COURT AND NOW, this day of February, 2005, the appeal of Thomas L. Day from an order of the Civil Service Commission of the Borough of Carlisle dated March 1, 2004, IS DISMISSED. By the Court, Edgar B. Bayley, J. Joseph D. Buckley, Esquire F or Thomas L. Day Joseph C. Rudolf, Esquire For the Civil Service Commission Edward L. Schorpp, Esquire For Borough of Carlisle :sal