P. Ray v. Civil Service Commission of Borough of Darby and Borough of Darby

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Peter Ray, :
Appellant :
:
v. : No. 215 C.D. 2015
:
Civil Service Commission of Borough :
of Darby and Borough of Darby :
:
Peter Ray :
v. : No. 359 C.D. 2015
: Argued: October 6, 2015
Civil Service Commission of Borough :
of Darby and Borough of Darby :
:
Appeal of: Borough of Darby :
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION BY JUDGE BROBSON FILED: January 5, 2016
Before this Court are the consolidated appeals of Peter Ray (Officer
Ray) and the Borough of Darby (Borough), from an order of the Court of Common
Pleas of Delaware County (trial court), which affirmed in part and reversed in part
an order of the Civil Service Commission of the Borough of Darby (Commission).
The Commission upheld the Borough’s suspension and termination of Officer
Ray’s employment for neglect of duty and conduct unbecoming an officer. The
trial court reversed the Commission’s order to the extent it upheld Officer Ray’s
suspension without pay and affirmed the Commission’s order to the extent it
upheld the termination of Officer Ray’s employment. Officer Ray appeals the
portion of the trial court’s order affirming his termination. The Borough
cross-appeals the portion of the trial court’s order reversing Officer Ray’s
suspension without pay. We now affirm in part and reverse in part.
I. BACKGROUND
The Commission’s findings reveal the events leading to the Borough’s
suspension and, ultimately, its termination of Officer Ray’s employment with the
Borough. On February 28, 2012, at 6:03 p.m., Officer Ray, while employed as a
police officer of the Borough, and two other officers, Officers Aaron Salisbury and
Keith Parker, responded to a call of a woman yelling at 706 Pine Street. Officer
Ray approached the residence and spoke to Henry Besson, who owned the home.
Officers Ray, Salisbury, and Parker and Corporal Joseph O’Donnell entered the
home and saw an adult woman and a child. When asked about the woman yelling,
Mr. Besson responded that his intoxicated cousin was yelling earlier in the night.
Officers Ray, Parker, and Salisbury entered the basement of the residence and
spoke with an intoxicated woman who appeared to be about twenty years old. The
woman, later identified as Fepee Kannah, exhibited slurred speech and spoke with
a heavy accent. Officer Ray could not understand her name when she told him, nor
did she provide identification. Ms. Kannah told Officer Ray that she lived at
706 Pine Street and that she was all right. Officer Ray testified that Ms. Kannah
was not injured, falling down, or in distress. Ms. Kannah told Officer Ray that she
wanted to dance.
At 6:09 p.m., Officers Parker and John Ettore responded to a priority
call concerning a “possible subject with a gun.” At 6:12 p.m., Officer Ray
informed the radio room that the police had finished responding to the call at
706 Pine Street. Officer Salisbury responded to a call for an open door on North
2
Ninth Street at 6:20 p.m., and, at 6:23 p.m., Officer Ray indicated that he was
“right around the corner” from the open door call. At 6:23 p.m., the radio room
received another call of a woman yelling at 706 Pine Street. Officer Ettore
communicated with the radio room regarding the call. Ten seconds later, Officer
Ray responded on the radio that “we just came from there, they are putting her to
bed.” (Reproduced Record (R.R.) at 434a.) The Borough police did not respond
to the second call concerning 706 Pine Street. At 6:32 p.m., the police received
another call concerning 706 Pine Street. The caller indicated that the police had
not responded last time and that there was “something going on” at the residence.
Officer Parker informed the caller that the police had responded and that the
woman was all right. Officer Parker responded to 706 Pine Street and informed
Mr. Besson that he would be cited if the noise did not cease. On
February 29, 2012, the police received another call concerning 706 Pine Street.
The caller was Ms. Kannah, who indicated that she had been raped. The police
responded to the call and arrested Mr. Besson and another man, Emmanuel
Benson. Lieutenant Richard Gibney investigated the alleged rape of Ms. Kannah.1
Police Chief Robert Smythe conducted an investigation concerning
Officer Ray’s response to the calls concerning 706 Pine Street. On April 5, 2012,
Chief Smythe issued Officer Ray a notice of charges pursuant to Cleveland Board
of Education v. Loudermill, 470 U.S. 532, 546 (1985) (holding that “public
employee is entitled to oral or written notice of the charges against him, an
explanation of the employer’s evidence, and an opportunity to present his side of
the story”). The notice of charges explained that Officer Ray’s response to the
1
Mr. Besson and Mr. Benson were later charged but ultimately acquitted.
3
incident may constitute violations of the police department’s rules and regulations,
neglect of duty, and conduct unbecoming an officer. In support of the charges,
Chief Smythe explained that Officer Ray failed to take appropriate action upon
finding that Ms. Kannah was highly intoxicated, that Officer Ray waived Officer
Ettore off the second call, that Officer Ray did not respond to the second call
himself after waiving off Officer Ettore, and that Officer Ray failed to properly
identify Ms. Kannah.
Officer Ray, represented by counsel, attended a Loudermill hearing on
April 10, 2012. On April 11, 2012, Chief Smythe issued Officer Ray a notice of
discipline, providing that Officer Ray’s employment was being suspended without
pay and that Chief Smythe recommended that the Borough Council terminate
Officer Ray’s employment. The notice of discipline stated that Officer Ray’s
conduct violated the police department’s rules and regulations, and constituted
conduct unbecoming an officer and neglect of duty. Specifically, the notice
provided:
The above-described [conduct] violates the disciplinary
code contained in the Code of the Borough . . .: conduct
unbecoming an officer, §§ 24-7.14 and § 24-7.4 –
concerning repeated violations of departmental rules and
regulations, or any other course of conduct indicating that
a member has little or no regard for his responsibility as a
member of the police department and knowingly and
willfully making a false entry in any departmental report
or record; § 24-7.35 concerning failure to take
appropriate action concerning illegal activity.
In addition, this conduct constitutes violation of the
Borough . . . Police . . . Commission Rules and
Regulations, §§ 503B. (neglect or violation of any
official duty) and D. (inefficiency, neglect, intemperance,
disobedience of orders or conduct unbecoming an
officer).
4
(R.R. at 301a.) Chief Smythe further concluded that Officer Ray’s conduct
violated
[the] Borough Police Department[’]s Policy and
Procedure Manu[a]l §§ 1.75 concerning repeated
violations of departmental rules and regulations or any
other course of conduct indicating that a member has
little or no regard for his responsibility as a member of
the police department; 4.01 concerning failure to take
police action when necessary, at any time, in or out of
uniform, and/or failure to make a written report of same
to commanding officer[;] 4.25 [concerning f]ailure to
conduct proper, th[o]rough and complete investigation;
4.50 concerning failure to properly patrol beat or sector,
unauthorized absence from assignment, failure to respond
to radio call, idle conversation or loafing; 20.002
concerning general responsibilities of members at the
crime scene.
(Id. at 301a.) The Borough Council passed a motion to terminate Officer Ray’s
employment on April 18, 2012, and issued a notice of termination to Officer Ray
on April 19, 2012. (Id. at 302a.)
Officer Ray demanded a hearing concerning the suspension and
termination of his employment pursuant to Section 1191 of the former Borough
Code, Act of February 1, 1966, P.L. (1965) 1656, formerly 53 P.S. § 46191, which
was then in effect.2 During the hearing, the Commission heard the testimony of
Lieutenant Richard Gibney, Detective Corporal Brian Pitts, Chief Smythe, and
Officer Ray. The Borough attempted to introduce the written statements of
Officers Parker, Salisbury, and Ettore, as well as a criminal investigation incident
2
Section 1191 of the former Borough Code, along with the other provisions of the
Borough Code, was repealed by Section 3(2) of the Act of April 18, 2014, P.L. 432, effective
June 17, 2014. The provisions of the new Borough Code are now found in Title 8 of the
Pennsylvania Consolidated Statutes, 8 Pa. C.S. §§ 101-3501.
5
report. Officer Ray objected to the admission of these documents as hearsay, but
the Commission did not rule on the admission of the documents during the
hearings.
The Commission ultimately sustained the suspension and termination
of Officer Ray’s employment. The Commission issued an adjudication report in
which it concluded that Officer Ray had neglected his duty and committed conduct
unbecoming an officer. The Commission based its conclusion on the following
facts:
After the second call to respond to 706 Pine St., Officer
Ray, as a senior officer, “cancelled the call” by telling
Officer Ettore that he had already handled the call.
Officer Ettore, relying on this information from a senior
officer, did not respond to the second call. Officer Ray
violated [Borough police department] procedure that is to
answer every call. Answering this second call was
Officer Ray’s responsibility. Furthermore, Officer Ray
was negligent and committed conduct unbecoming for
failing to take Ms. Kannah into his custody, or to take her
to the hospital. The officer’s indifference to her
vulnerable condition destroyed public respect for and
confidence in the [Borough] police department.
(Comm’n Adjudication Report at 16.) In so doing, the Commission explained that
it did not rely on hearsay evidence in reaching this conclusion. The Commission
made no findings or conclusions with respect to Officer Ray’s failure to identify
Ms. Kannah. Officer Ray appealed to the trial court. On February 5, 2015, the
trial court issued an order affirming the termination of Officer Ray’s employment
and reversing the suspension of Officer Ray’s employment. Officer Ray appeals
the order of the trial court to the extent it affirmed the termination of his
employment, and the Borough cross-appeals the order of the trial court to the
extent it reversed the suspension of Officer Ray’s employment.
6
II. DISCUSSION
On appeal,3 Officer Ray raises four issues. First, Officer Ray argues
that the trial court erred in refusing to order the Commission to redact from the
record the hearsay evidence upon which the Commission did not rely in issuing its
order. Second, Officer Ray argues that his due process rights were violated where
(1) he did not receive adequate pre-termination notice nor a pre-termination
opportunity to be heard; (2) a written statement of charges was not filed with the
Commission; and (3) the Commission allowed the admission of impermissible
hearsay evidence. Third, Officer Ray contends that substantial evidence does not
support the Commission’s findings of fact. Fourth, Officer Ray argues that the
trial court erred in concluding that the termination of his employment was neither
excessive nor disparate. In its cross-appeal, the Borough contends that the trial
court erred in reversing the suspension of Officer Ray’s employment due to its
conclusion that Chief Smythe did not have the authority to suspend Officer Ray’s
employment.
A. Certification of the Record
We first address Officer Ray’s argument that the trial court erred in
refusing to order the Commission to redact from the record the hearsay evidence
upon which the Commission did not rely in issuing its order. Officer Ray contends
that the trial court could only review the evidence that was actually considered by
the Commission. In its order, the Commission expressly provided that it did not
3
This Court's standard of review of an order of the Commission is limited to considering
whether substantial evidence supports necessary factual findings, whether an error of law was
committed, or whether a violation of constitutional rights occurred. 2 Pa. C.S. § 704.
7
rely on hearsay evidence in rendering its decision as to the suspension and
termination of Officer Ray’s employment. According to Officer Ray, the hearsay
evidence, therefore, should have been redacted from the record before it was
certified to the trial court.
“In the event a full and complete record of the proceedings before the
local agency was made, the court shall hear the appeal without a jury on the record
certified by the agency.” Section 754(b) of the Local Agency Law, 2 Pa. C.S.
§ 754(b). This Court has defined a “full and complete record” as “a complete and
accurate record of the testimony taken so that the appellant is given a base upon
which he may appeal and, also, that the appellate court is given a sufficient record
upon which to rule on the questions presented.” In re Thompson, 896 A.2d 659,
668 (Pa. Cmwlth. 2005), appeal denied, 916 A.2d 636 (Pa. 2006). “A sufficiency
claim will not be reviewed on a diminished record, ‘but rather on the evidence
actually presented to the finder of fact rendering the questioned verdict.’”
D’Alessandro v. Pa. State Police, 937 A.2d 404, 410 (Pa. 2007) (quoting
Commonwealth v. Lovette, 450 A.2d 975, 977 (Pa. 1982)).
Here, the Commission was required to certify the record to the trial
court without redacting any evidence. Officer Ray argued before the trial court
that substantial evidence did not support the Commission’s findings and that the
admission of certain hearsay evidence constituted reversible error. The full and
complete record, including the evidence to which Officer Ray objected, was
necessary for the trial court to review the issues presented. We, therefore, reject
Officer Ray’s argument that the trial court erred in refusing to order the
Commission to redact from the record the hearsay evidence upon which the
Commission did not rely in issuing its order.
8
B. Due Process
We next address Officer Ray’s argument that his due process rights
were violated. Specifically, Officer Ray contends that: (1) he did not receive
adequate pre-termination notice nor a pre-termination opportunity to be heard;
(2) a written statement of charges was not filed with the Commission; and (3) the
Commission allowed the admission of impermissible hearsay evidence.
1. Notice of Intent and Pre-termination Hearing
Officer Ray argues that his due process rights were violated because
he did not have adequate notice that his employment may be terminated and
because his hearing was insufficient to satisfy due process requirements. With
respect to notice, Officer Ray contends that the language of the April 5, 2012
notice, informing him that he “may be subject to disciplinary action that could
affect [his] pay,” was insufficient to put him on notice that the Borough may
consider the termination of his employment. Similarly, he contends that he was
not provided with an opportunity to be heard with respect to the termination of his
employment.
Due process requires that prior to the deprivation of a property
interest, such as that which a civil service employee has in his or her employment,
an employee must have notice and an opportunity to be heard. Loudermill,
470 U.S. at 542. The opportunity to be heard prior to the termination of a civil
service employee’s employment “need not be elaborate.” Id. at 545. “In general,
‘something less’ than a full evidentiary hearing is sufficient prior to adverse
administrative action.” Id. The pre-termination hearing serves as “an initial check
against mistaken decisions—essentially a determination of whether there are
reasonable grounds to believe that the charges against the employee are true and
9
support the proposed action.” Id. at 545-46. “[D]ue process is satisfied at the
pre-termination stage, where (1) a post-termination hearing is available to the
employee, (2) the employee receives oral or written notice of the reasons for
(eventual) dismissal with explanation of the employer’s evidence, and (3) the
employee is given an opportunity to present his or her side of the story.” Veit v. N.
Wales Borough, 800 A.2d 391, 398 (Pa. Cmwlth. 2002), appeal denied, 815 A.2d
635 (Pa. 2003).
Here, the Borough complied with the pre-termination due process
requirements. On April 5, 2012, Chief Smythe issued Officer Ray a notice of the
charges against him. In the notice, Chief Smythe described in detail Officer Ray’s
conduct as to the various calls concerning 706 Pine Street and explained the
evidence against Officer Ray. (R.R. at 295a-97a.) Chief Smythe identified the
numerous departmental rules and regulations which Officer Ray allegedly violated.
(Id. at 297a.) The notice further provided that Officer Ray could respond to the
charges in writing. (Id. at 295a.) On April 10, 2012, Officer Ray, represented by
counsel, attended a Loudermill hearing, where he had the opportunity to refute the
charges against him. On April 11, 2012, Chief Smythe issued Officer Ray a notice
of discipline, in which he explained that Officer Ray’s employment was suspended
without pay. (Id. at 298a-301a.) Chief Smythe indicated that he would
recommend to the Borough Council that Officer Ray’s employment be terminated.
This process complied with pre-termination due process requirements, because
Officer Ray was informed of the charges against him and provided with an
opportunity to respond to those charges. See Veit, 800 A.2d at 398. Despite
Officer Ray’s arguments, the Borough was not obligated to provide additional
notice or an additional hearing. Officer Ray had both notice and an opportunity to
10
be heard with respect to the potential termination of his employment, and we,
therefore, reject Officer Ray’s argument.4
2. Statement of Charges
Officer Ray next contends that his due process rights were violated
because no statement of charges was ever filed with the Commission as required
by Section 1190 of the former Borough Code, Act of February 1, 1966, P.L. (1965)
1656, formerly 53 P.S. § 46190.5 Section 1190 of the former Borough Code
provides that “[a] written statement of any charges made against any person . . .
employed [by the Borough] shall be furnished to such person within five days after
the same are filed.” Section 1191 of the former Borough Code provides that the
Commission must conduct a pre-termination hearing “within a period of ten days
from the filing of charges in writing.” Officer Ray contends that although he
received notice of the charges against him, the failure of the Borough to file a
statement of charges with the Commission constitutes a denial of due process.
Here, Officer Ray received notice of the charges on April 5, 2012,
five days before his Loudermill hearing on April 10, 2012. As noted above, the
April 5, 2012, notice of charges and the Loudermill hearing satisfied the
pre-termination due process requirements. On April 11, 2012, Chief Smythe
issued Officer Ray a notice of discipline, and on April 19, 2012, the Borough
4
Within this argument, Officer Ray appears to contend that he was deprived of due
process, because his Loudermill hearing was held before Chief Smythe rather than the Borough
Council. Officer Ray cites no case law in support of this contention. Because we reverse on
other grounds, see infra Parts II.C.1-2, we need not address this argument.
5
In his brief, Officer Ray cites to the current version of the Borough Code which, as
noted above, became effective in 2014. Because the process to which Officer Ray objects took
place in 2012, we base our analysis on the provisions of the former Borough Code.
11
Council issued Officer Ray a notice of termination. Officer Ray demanded
hearings after receiving the April 11, 2012, and April 19, 2012, notices regarding
disciplinary action. The fact that the Borough issued the notice of charges and held
a Loudermill hearing before the filing of the charges with the Commission is
irrelevant.6 Officer Ray had sufficient notice of the charges to prepare a defense.
We, therefore, reject Officer Ray’s argument that his due process rights were
violated because no statement of charges was ever filed with the Commission.
3. Hearsay
Officer Ray next argues that the Commission allowed the admission
of impermissible hearsay evidence, thereby depriving him of his right to
cross-examine certain witnesses. Specifically, Officer Ray takes issue with the
admission of the written statements of Officers Parker, Salisbury, and Ettore, as
well as a criminal incident investigation report “contain[ing] numerous hearsay
statements of individuals interviewed for purposes of the criminal investigation.”
(Officer Ray Br. at 29.)
Hearsay is a statement that “(1) the declarant does not make while
testifying at the current trial or hearing; and (2) a party offers in evidence to prove
6
Officer Ray contends that “the failure to provide the required statement, in the manner
prescribed by law constitutes a denial of due process.” (Officer Ray Br. at 25.) In support of this
proposition, Officer Ray cites Cerceo v. Borough of Darby, 281 A.2d 251 (Pa. Cmwlth. 1971).
Cerceo, however, is distinguishable from the instant matter. In Cerceo, the appellants were
never provided with a written statement of the charges against them. Consequently, the
“appellants were not afforded the opportunity of answering written charges.” Cerceo, 281 A.2d
at 252. The circumstances in Cerceo unquestionably constituted a deprivation of due process.
Here, however, Officer Ray experienced no such deprivation. The Borough’s failure to file a
statement of charges had no effect on Officer Ray’s receipt of notice and an opportunity to be
heard.
12
the truth of the matter asserted in the statement.” Pa. R.E. 801(C). Local agencies,
however, are not bound by technical rules of evidence, and “all relevant evidence
of reasonably probative value may be received.” Section 554 of the Local Agency
Law, 2 Pa. C.S. § 554. Hearsay is admissible in administrative proceedings when
it is corroborated or otherwise shows indicia of reliability. Unemployment Comp.
Bd. of Review v. Ceja, 427 A.2d 631, 640 (Pa. 1981). A finding of fact based
solely on hearsay evidence does not constitute reversible error if the finding is
unnecessary to support the adjudication. Davis v. Civil Serv. Comm’n, 820 A.2d
874, 879 (Pa. Cmwlth. 2003).
Officer Ray contends that the Commission committed reversible error
in admitting hearsay evidence,7 yet he fails to identify the Commission’s findings
of fact that are based solely on hearsay evidence and necessary to the adjudication.
Rather, Officer Ray’s argument appears to be that because he did not have the
opportunity to cross-examine the authors of the written statements and the criminal
incident investigation report, he was deprived of due process. In support of this
argument, Officer Ray cites Civil Service Commission of the Borough of
Vandergrift v. Polito, 156 A.2d 99 (Pa. 1959). In Polito, the Civil Service
Commission of the Borough of Vandergrift terminated a police officer’s
employment because the police officer committed a criminal offense. The police
officer requested and was granted a hearing. Prior to the civil service commission
arriving at a decision in the matter, however, the chief of police sent a letter to the
civil service commission supporting the testimony of a witness against the police
officer. The civil service commission did not disclose the contents of the letter.
7
There is no dispute that the evidence at issue constituted hearsay.
13
Further, the civil service commission heard the testimony of an additional witness
in the absence of the police officer and his counsel. The common pleas court
affirmed the civil service commission’s termination of the police officer’s
employment, and the police officer appealed to the Supreme Court of
Pennsylvania. On appeal, the police officer argued that he was entitled to a
hearing, that he was entitled to be present at the hearing, and that a record of the
hearing must be maintained by the civil service commission. The Supreme Court,
quoting In re Shenandoah Suburban Bus Lines, 46 A.2d 26, 29 (Pa. Super. 1946),
explained:
In hearings before the [civil service] commission all
parties must be apprised of the evidence submitted, and
must be given opportunity to cross-examine witnesses; to
inspect documents and to offer evidence in explanation
or rebuttal according to well understood rules. In no
other way can a party maintain its rights, or make a
defense, or test the sufficiency of the facts to support the
finding. And while the [civil service] commission is an
administrative body, and even where it acts in a
quasijudicial capacity and is not limited by the strict rules
as to the admissibility of evidence which prevail in suits
between private parties, the more imperative it is to
preserve the essential rules of evidence by which rights
are asserted or defended. Otherwise, even though it
appeared that the order was without evidence, the
manifest deficiency could always be explained on the
theory that the commission had before it extraneous,
unknown, but presumptively sufficient information to
support the finding.
Polito, 156 A.2d at 101 (citations omitted) (emphasis added). The Supreme Court
further explained that this was not “a case where an administrative tribunal merely
received some evidence which was hearsay but a case where evidence was secretly
received and acted upon in clear defiance of the requirement of the statute.” Id.
14
Polito is clearly distinguishable from the instant matter. There,
evidence was admitted and testimony heard in the absence of the police officer and
counsel. The Supreme Court in Polito sought to prevent civil service commissions
from basing their findings of fact on evidence not in the record. Here, Officer Ray
and his counsel were both present for the hearings concerning the termination of
Officer Ray’s employment. No evidence was admitted or testimony heard in the
absence of Officer Ray and his counsel. As noted above, Officer Ray had the
chance to present a defense against the charges. Although hearsay evidence was
offered, it was offered in the presence of Officer Ray and his counsel, thereby
providing an opportunity for Officer Ray’s counsel to object. In fact, Officer
Ray’s counsel did object to the admission of that evidence, and the Commission
noted in its adjudication report that it did not consider the hearsay evidence. We,
therefore, reject Officer Ray’s argument that the Commission committed reversible
error in admitting hearsay evidence.
C. Substantial Evidence
We next address Officer Ray’s argument that substantial evidence
does not support the Commission’s findings of fact concerning the charges of
neglect of duty and conduct unbecoming an officer. Substantial evidence is “such
relevant evidence that a reasonable mind might accept as adequate to support a
conclusion.” Lewis v. Dep’t of Health, 437 A.2d 811, 813 (Pa. Cmwlth. 1981). “It
is well settled that the Commission as fact-finder below is the ultimate arbiter of
questions of credibility and the weight to be given conflicting evidence.” D’Amato
v. Dep’t of Gen. Servs., 427 A.2d 1287, 1288-89 (Pa. Cmwlth. 1981). “[T]his
Court is not empowered to ‘weigh the evidence or substitute its judgment on
15
factual matters for that of the fact finder.’” Id. (quoting Dep’t of Pub. Welfare v.
Mawn, 368 A.2d 1316, 1319 (Pa. Cmwlth. 1977)).
1. Neglect of Duty
Officer Ray argues that substantial evidence does not support the
Commission’s finding that Officer Ray neglected his duty by “cancelling” a call to
which the police department should have responded. It is well-settled that “a
violation of a specific written directive is not a prerequisite to a finding of neglect
of official duty.” Borough of Edgeworth v. Blosser, 672 A.2d 854, 857 (Pa.
Cmwlth.), appeal denied, 683 A.2d 885 (Pa. 1996). Not “every judgmental error
by a police officer automatically rises to the level of official neglect.” Appeal of
Appel, 606 A.2d 977, 980 (Pa. Cmwlth. 1992).
We agree that substantial evidence does not support this finding.
During the hearings before the Commission, Officer Ray testified that in response
to the second call concerning 706 Pine Street, he advised Officer Ettore “that it was
a drunken female or a female who was intoxicated at the time, and the family was
supposed to be putting her to bed.” (R.R. at 682a.) Officer Ray explained why he
responded this way:
Any time you get a second and third call to an address
that you were at, it’s pretty much police protocol you get
on the radio and you let whatever officer is going to that
call know what you had the first time, to give them a
heads up as to what was going on earlier so they know at
least an idea of what they’re getting into.
(Id.) The information provided by the radio room also reveals that Officer Ray
stated that “we just came from there they are putting her to bed.” (Id. at 240a.)
Officer Ray testified that only the corporal or lieutenant has the authority to cancel
a call, and that Officer Ray did not instruct Officer Ettore to disregard the call. (Id.
at 681a, 682a-83a.)
16
Officer Ettore did not testify before the Commission. Chief Smythe,
however, testified concerning the call and Officer Ettore’s response. Chief Smythe
explained that “[Officer] Ettore took the call and [Officer] Ray canceled the call;
and [Officer Ray] didn’t use the word canceled, but [he] said we’ve already been
there, they’re putting her to bed. And with that the 911 center clears out the call.”
(Id. at 643a.) He further testified that Officer Ettore did not respond to the call,
because “[Officer] Ray took over the call, telling him that he was already there, the
call was handled.” (Id. at 193a.)
Chief Smythe’s testimony does not constitute substantial evidence on
the material factual question of whether Officer Ettore did not respond to the
second call because he interpreted Officer Ray’s radio communication as a
cancellation of the second call. Although local agencies, such as civil service
commissions, are not bound by technical rules of evidence, Section 554 of the
Local Agency Law, 2 Pa. C.S. § 554, this does not mean that these local
proceedings are evidentiary free-fire zones. Although the evidentiary standards are
relaxed in local agency proceedings, there are fundamental rules of law to which
an agency must adhere to ensure fairness to all parties. For example, in A.Y. v.
Department of Public Welfare, Allegheny County Children & Youth Services,
641 A.2d 1148 (Pa. 1994), our Supreme Court considered the use of hearsay
evidence in administrative proceedings. In A.Y., the Department of Public Welfare
Office of Hearings and Appeals (Department) conducted an administrative hearing
concerning the denial of A.Y.’s request for the expungement of A.Y.’s name from
the Statewide Child Line and Abuse Registry, during which it admitted hearsay
evidence. In affirming the denial of A.Y.’s request for expungement, the
Department based its conclusion solely on hearsay testimony. This Court affirmed
17
the denial. A.Y. appealed to our Supreme Court, which, in reversing this Court,
noted that in other administrative proceedings, this Court had “held that the
hearsay rule is not a mere technical rule of evidence, but a fundamental rule of law
which ought to be followed by agencies when facts crucial to the issue are sought
to be placed on the record and an objection is made thereto.” A.Y., 641 A.2d at
1151. The Supreme Court explained that by allowing the Department to rely
solely on hearsay evidence in child abuse expungement cases, it is “possible for
accusations of child abuse, as reported by a third party, to constitute sufficient
substantive evidence to register an individual citizen on a ‘black list’ for all time.”
Id. at 1152. Accordingly, the Supreme Court held that uncorroborated hearsay
evidence cannot support a finding of abuse, unless certain requirements are
satisfied.
For purposes of this matter, it is a fundamental rule of law that only
witnesses with personal first-hand knowledge may testify as to material factual
issues. See Pa. R.E. 602 (“A witness may testify to a matter only if evidence is
introduced sufficient to support a finding that the witness has personal knowledge
of the matter.”); see also William Penn Sch. Dist. v. Dep’t of Educ., Div. of Food
and Nutrition, 902 A.2d 583, 588 n.4 (Pa. Cmwlth. 2006) (providing that Pa. R.E.
602 applies to agency proceedings). Although the Borough called Chief Smythe to
testify on the crucial factual question of why Officer Ettore did not respond to the
second call, the Borough elicited no testimony from Chief Smythe as to his
first-hand knowledge on this subject. Indeed, it seems that the only way Chief
Smythe could acquire such knowledge is through an out-of-court discussion with
Officer Ettore himself. This would run afoul of yet another fundamental rule of
law—i.e. hearsay. Accordingly, Chief Smythe’s testimony cannot be considered
18
substantial evidence to support the Commission’s finding on the crucial question of
whether Officer Ray’s radio communication caused Officer Ettore not to respond
to the second call.
Further, Chief Smythe’s testimony concerning the language Officer
Ray used on the radio does not support the charge of neglect of duty for cancelling
the call. Chief Smythe’s testimony reveals only that Officer Ray stated that he had
responded to the call at 706 Pine Street and that the individuals at the residence
were putting an intoxicated woman to bed. Notably, Chief Smythe did not testify
that Officer Ray told other officers not to respond. In the absence of Chief
Smythe’s testimony, the only evidence regarding the cancelled call is that of
Officer Ray, who explained that not only did he not cancel the call, but that an
officer does not have the authority to cancel a call. Accordingly, we reverse the
order of the trial court affirming the termination of Officer Ray’s employment for
neglect of duty for cancelling the call.
Officer Ray also contends that substantial evidence does not support
the Commission’s finding that Officer Ray neglected his duty by failing to take
Ms. Kannah into his custody or to the hospital. Specifically, Officer Ray contends
that there was no evidence presented that Ms. Kannah required medical treatment.
Officer Ray also contends that although he did not issue Ms. Kannah a summary
offense citation and take her into custody, his choice not to do so was a proper
exercise of discretion, and, therefore, insufficient to support a charge for neglect of
duty.
We agree that the evidence above does not support a charge of neglect
of duty for failing to take Ms. Kannah into custody or to take her to the hospital.
The instant matter is analogous to Appeal of Appel. In Appeal of Appel, a police
19
officer made the decision not to deprive a prisoner of his belt or shoelaces prior to
detaining him in a cell. The prisoner hung himself while he was detained. After
the death of the prisoner, the Borough of Ambridge’s mayor suspended the police
officer without pay, and the borough council later suspended the police officer for
thirty days. The civil service commission upheld the suspension, and the common
pleas court affirmed. The police officer appealed to this Court, arguing that
substantial evidence did not support his suspension for neglect of duty.
Specifically, he argued that there was no official duty to deprive the prisoner of his
belt and that “the duty to remove a belt is not so fundamental to a police officer’s
obligation that failure to do so is neglect when there is no departmental rule on the
subject.” Appeal of Appel, 606 A.2d at 697. We agreed with the police officer.
We concluded that there was no evidence of written policies or procedures with
respect to the removal of items from prisoners and that the evidence indicated that
the choice to remove such items was discretionary. Specifically, “the decision
regarding whether to remove [the prisoner’s] belt was a matter of [the police
officer’s] judgment, and he exercised that judgment in the absence of any written
directives or policy memoranda.” Id. at 699 (emphasis added).
Here, the choice regarding whether to take Ms. Kannah into custody
or to take her to the hospital was a matter within Officer Ray’s discretion. There
was no evidence of written policies or procedures regarding a police officer’s duty
in this situation. During the hearing before the Commission, Officer Ray testified
that upon entering the basement of 706 Pine Street, he encountered a “young
female” who “appeared intoxicated.” (R.R. at 689a.) Officer Ray spoke to her and
asked her for her name, but he could not understand her response, because she had
a thick accent and was slurring her words. (Id. at 743a.) She did not give Officer
20
Ray any identification. (Id. at 712a.) Officer Ray asked her to keep the noise level
down, and she responded that she “just want[ed] to dance.” (Id. at 689a.) She
informed Officer Ray that she “was all right.” (Id.) There was at least one
unidentified male in the basement. (Id. at 709a.) Officer Ray testified that he did
not give Ms. Kannah a summary offense citation, but that it was within his
discretion to do so. (Id. at 735a.) He explained that if he had removed
Ms. Kannah from 706 Pine Street, he “would have had to bring her to the police
station,” but that he would later have to take “her back to the house.” (Id. at
694a-95a.)
During the hearing before the Commission, Detective Corporal Pitts
also testified concerning the authority of an officer to take a young, intoxicated
woman into custody or to take her to the hospital. Detective Corporal Pitts
testified that a police officer can place an individual under arrest for underage
drinking and take the individual to the police department. (Id. at 525a.) He further
explained:
Q. If you came across a 19-year-old drunk woman in a
house full of men where no one knew her name, would
you leave that woman in the house or would you take her
to the department to get her identification?
A. I’d probably take her.
(Id. at 522a.) Detective Corporal Pitts also testified that he would probably have
taken Ms. Kannah to the hospital to “check on her well-being.” (Id. at 523a.)
With respect to hospitalization, Detective Corporal Pitts further testified:
Q. Would you leave her at the hospital?
A. It depends on the circumstances, you know. How
intoxicated is she? Is there someone that can come pick
her up? How old is she? Does she have a ride? I mean a
lot of things come in to factor. Each different - - each
incident is different.
21
Q. I would agree. And it all depends on what is
presented to you or any other officer at the time and what
discretion that officer, you or any other officer, exercises
based on what you or another officer is confronted with
at the time; correct?
A. I agree.
(Id. at 523a-24a.)
The evidence presented to the Commission does not support the
charge of neglect of duty for failing to take Ms. Kannah into custody or to the
hospital. Rather, the evidence reflects that Officer Ray had the discretion to issue a
summary offense citation to Ms. Kannah and to take her into custody. He also had
the discretion to take her to the hospital. That he did not do so may constitute an
error of judgment, but this error does not rise to the level of official neglect.
Accordingly, we reverse the order of the trial court affirming the termination of
Officer Ray’s employment for neglect of duty for failing to take Ms. Kannah into
custody or to the hospital.8
2. Conduct Unbecoming an Officer
Officer Ray argues that substantial evidence does not support the
Commission’s finding that Officer Ray engaged in conduct unbecoming an officer
by failing to take Ms. Kannah into his custody or to the hospital. To show that an
officer has engaged in conduct unbecoming an officer, “it must be shown that his
8
The Borough contends that “[b]y failing to get the name, age and identifying
information of the young ‘visibly intoxicated’ ‘female’ and other persons at 706 Pine Street
before clearing the call, Officer Ray left the scene without doing the most elemental police
work.” (Borough Br. at 35.) While the Commission could have concluded that Officer Ray’s
failure to identify Ms. Kannah constituted a neglect of duty, the Commission failed to make any
findings or conclusions concerning this subject. Instead, the Commission based its conclusion
on Officer Ray’s cancellation of the call and his failure to take Ms. Kannah into custody or to the
hospital.
22
conduct adversely affected the morale or efficiency of the police force or tended to
destroy public respect for municipal employees and confidence in the operation of
municipal services.” Kazmarek v. New Bethlehem Borough Council, 478 A.2d
514, 517 (Pa. Cmwlth. 1984). “To be . . . unbecoming a police officer, conduct
must only ‘be such as to offend publicly accepted standards of decency.’”
Borough of Darby v. Coleman, 407 A.2d 468, 471 (Pa. Cmwlth. 1979) (quoting
Zeber Appeal, 156 A.2d 821, 825 (Pa. 1959)). Officer Ray contends that he was
not the only officer to encounter Ms. Kannah at 706 Pine Street, and, therefore, he
was not the only officer responsible for the loss of public respect and lowered
morale of the police department which resulted from the incident. He was,
however, the only officer whose employment was terminated.
Substantial evidence does not exist to support the finding that Officer
Ray engaged in conduct unbecoming an officer by failing to take Ms. Kannah into
his custody or to the hospital. During the hearing before the Commission, Chief
Smythe testified that “[w]ithin the days after this happened, . . . a lot of people
were milling around, looking at the house. And the initial [caller] was extremely
upset and he was talking to the neighbors.” (R.R. at 595a.) He explained that he
had spoken to seven or eight of the neighbors. (Id. at 595a-96a.) Chief Smythe
stated that the police “were just bombarded with questions, what about - - what
about what the cops did, how come the cops didn’t respond, what’s going to
happen to the cops, is this going to get swept under the rug.” (Id. at 596a.) Chief
Smythe described the neighbors as “extremely upset about the way the police
handled [the incident], especially with [the initial caller] coming out and saying I
called, I called, I called, and nobody came.” (Id. at 597a.) With respect to the
police department’s morale, Chief Smythe testified:
23
I mean certainly every member here was upset. It went
through the department. It was pitting police officer
against police officer - - not the guys that were involved;
the squads that were off, but you know, were pointing
fingers at, you know, [Officer] Ray saying that it wasn’t
his call, it was [Officer] Ettore’s call.
(Id. at 598a.)
As noted above, Officer Ray had the discretion to issue a summary
offense citation to Ms. Kannah or take her to the hospital. While we understand
that the community was upset with how the police department responded to the
incident involving Ms. Kannah, a charge of conduct unbecoming an officer must
be supported by more than a disagreement with an officer’s exercise of discretion.
See, e.g., Powell v. Middletown Twp. Bd. of Supervisors, 782 A.2d 617, 621 (Pa.
Cmwlth. 2001) (upholding termination of officer’s employment for conduct
unbecoming officer where officer pointed service weapon at fellow officer in
public), appeal denied, 797 A.2d 918 (Pa. 2002); Feliciano v. Borough of
Norristown, 758 A.2d 295, 297 (Pa. Cmwlth. 2000) (upholding termination of
officer’s employment for conduct unbecoming officer where officer initiated
domestic dispute with wife, brandished service weapon, drove wrong way down a
one-way street, and had to be physically removed to police department); Borough
of Riegelsville v. Miller, 639 A.2d 1258, 1262-63 (Pa. Cmwlth.) (concluding that
termination of police chief’s employment for conduct unbecoming officer was
supported by police chief’s adultery and failure to pay child support), appeal
denied, 639 A.2d 676 (Pa. 1994). Officer Ray’s choice not to take Ms. Kannah
into custody or to the hospital, although it may constitute an error in judgment,
does not support a charge of conduct unbecoming an officer. Accordingly, we
reverse the order of the trial court affirming the termination of Officer Ray’s
24
employment for conduct unbecoming an officer for failing to take Ms. Kannah into
custody or to the hospital.
D. Penalty Modification
We next address Officer Ray’s argument that the trial court erred in
concluding that the termination of Officer Ray’s employment was neither
excessive nor disparate so as to justify a modification of the penalty imposed upon
Officer Ray. Officer Ray draws attention to the fact that two other officers as well
as a police supervisor also responded to the call at 706 Pine Street. No disciplinary
action was taken against at least one of the officers involved in the incident. The
supervisor’s employment was temporarily suspended and his rank was temporarily
reduced, but his employment was not terminated. Officer Ray further contends
that because the charges against him were supported solely by hearsay evidence,
the trial court erred in concluding that it did not have the authority to modify the
penalty imposed upon him. Because we reverse the trial court’s order affirming
the termination of Officer Ray’s employment for neglect of duty and conduct
unbecoming an officer, we need not address this argument.
E. Police Chief’s Authority to Suspend Employment
We next address the Borough’s cross-appeal. The Borough contends
that the trial court erred in reversing the suspension of Officer Ray’s employment.
Specifically, the Borough argues that the trial court erred in concluding that Chief
Smythe did not have the authority to suspend Officer Ray’s employment. Rather,
the trial court held that under the Borough Code, only the Borough Council and the
Mayor have the authority to suspend a police officer’s employment.
Under Section 1121 of the former Borough Code, Act of
February 1, 1966, P.L. (1965) 1656, formerly 53 P.S. § 46121, the Borough
25
Council “may . . . appoint and remove, or suspend, or reduce in rank, one or more
suitable persons . . . as borough policemen.” The Mayor has “full charge and
control of the chief of police and the police force, and he shall direct the time
during which, the place where and the manner in which, the chief of police and the
police force shall perform their duties,” but the Mayor may “delegate to the chief
of police . . . supervision over and instruction to subordinate officers in the manner
of performing their duties.” Id. The Mayor also has the authority to suspend
police officers in limited circumstances:
In addition to the powers of council to suspend
policemen, the mayor may, for cause and without pay,
suspend any policemen until the succeeding regular
meeting of the council, at which time or thereafter the
council may . . . suspend, discharge, reduce in rank or
reinstate with pay, such policemen.
Section 1124 of the former Borough Code, Act of February 1, 1966, P.L. (1965)
1656, formerly 53 P.S. § 46124.
The Borough contends that the Borough Council properly delegated
the power to suspend a police officer through the Borough’s Civil Service
Ordinance, adopted in 1985. Section 505(C) of the Civil Service Ordinance
provides that “[t]he B[orough Council], or the Chief of Police when the B[orough
Council] is not in session, may suspend [a police officer] without pay pending the
determination of the charges against him.” As noted above, the exclusive authority
to suspend a police officer rests with the Borough Council. Nothing in the former
Borough Code, however, authorizes the Borough Council to delegate its power to
suspend a police officer to the police chief. See Section 1121 of the former
Borough Code. The Mayor has limited authority to temporarily suspend a police
officer when the Borough Council is not in session, but the former Borough Code
does not grant the Mayor the power to delegate his or her limited authority to the
26
police chief. See Sections 1121 and 1124 of the former Borough Code. Rather,
the former Borough Code only allows the Mayor to delegate to the police chief his
or her power to supervise and instruct subordinate officers in the manner of
performing their duties. Regardless, Section 505(C) of the Civil Service Ordinance
purports to delegate the Borough Council’s power to suspend the police chief. The
Borough Council, however, had no authority in the former Borough Code to
delegate either its own authority to the police chief or to delegate the Mayor’s
limited authority. We, therefore, reject the Borough’s argument that the trial court
erred in reversing the suspension of Officer Ray’s employment.9
III. CONCLUSION
Accordingly, we reverse the portion of the trial court’s order affirming
the termination of Officer Ray’s employment for neglect of duty for cancelling the
call, neglect of duty for failing to take Ms. Kannah into custody or to the hospital,
and conduct unbecoming an officer for failing to take Ms. Kannah into custody or
to the hospital, because substantial evidence does not support these charges. With
respect to the Borough’s cross-appeal concerning the suspension of Officer Ray’s
employment, we affirm the trial court’s order, because Chief Smythe did not have
the authority to suspend Officer Ray’s employment.
P. KEVIN BROBSON, Judge
9
Officer Ray contends that the Commission conducted its proceedings and issued its
adjudication report in the absence of lawfully adopted and approved rules and regulations.
Specifically, Officer Ray argues that there is no evidence to show that Section 505(C) of the
Civil Service Ordinance was properly approved by the Borough Council. Because we conclude
that the Borough Council did not have the authority to delegate the Mayor’s power to
temporarily suspend a police officer’s employment, we need not address this argument.
27
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Peter Ray, :
Appellant :
:
v. : No. 215 C.D. 2015
:
Civil Service Commission of Borough :
of Darby and Borough of Darby :
:
Peter Ray :
v. : No. 359 C.D. 2015
:
Civil Service Commission of Borough :
of Darby and Borough of Darby :
:
Appeal of: Borough of Darby :
ORDER
AND NOW, this 5th day of January, 2016, the order of the Court of
Common Pleas of Delaware County (trial court), is AFFIRMED in part and
REVERSED in part. The trial court’s order is AFFIRMED to the extent that it
reversed the Borough of Darby’s (Borough) suspension of Peter Ray’s (Officer
Ray) employment without pay. The trial court’s order is REVERSED to the extent
that it affirmed the Borough’s termination of Officer Ray’s employment. The
Borough is hereby directed to reinstate Officer Ray with back pay from the date of
his suspension.
P. KEVIN BROBSON, Judge