47 Pa. Commw. 9 | Pa. Commw. Ct. | 1979
Opinion by
The Borough of Darby (Borough) has appealed from an order of the Court of Common Pleas of Delaware County ordering reinstatement with back pay of Paul J. Coleman as Chief of Police of the Borough. The order of the court below reversed the decision of the Borough Council discharging Coleman which had been upheld, after hearing, by the Darby Borough Police Civil Service Commission.
Coleman was dismissed pursuant to Section 1190 of The Borough Code, Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. §46190, which provides in part that a police officer may be removed for “(2) [n]eglect... of any official duty” and “(4) [i]n-efficiency, neglect, intemperance, immorality ... or conduct unbecoming an officer.” Specifically, Coleman was charged with (1) directing profane and insulting language toward a subordinate, after indulging in strong drink; (2) failing to initiate a criminal complaint when circumstances called for such action; (3) failing to assist a fellow officer after informing that officer that he would assist; and (4) engaging in a relationship with a woman other than his wife. The
The Borough contends on this appeal that the court below exceeded its scope of review of the Commission’s decision by making an independent examination of the record and making findings of fact which, in effect, substituted its judgment for that of the Commission. The Commission claims that there is substantial evidence in the record to support its findings. Coleman, on the other hand asserts that the evidence of record does not support the Commission’s findings and further argues that any reliance by the Commission upon the Borough’s ordinance regulating police conduct is unconstitutional as an ex post facto application of law, since the ordinance in question was not enacted until a date after his allegedly improper conduct had occurred.
Our scope of review, where the court below did not receive any additional evidence or testimony, is limited to a determination of whether the Civil Service Commission abused its discretion or committed an error of law. Gabauer v. Civil Service Commission, 6 Pa. Commonwealth Ct. 646, 648, 297 A.2d 507, 508 (1972). We must affirm the Civil Service Commission’s decision if there is substantial evidence to support it.
With respect to the charge that Coleman engaged in immoral conduct with a woman not his wife, Cole
In Faust v. Police Civil Service Commission of Borough of State College, 22 Pa. Commonwealth Ct. 123, 347 A.2d 765 (1975), we held that adultery is conduct which is both immoral and unbecoming an officer and that it may be the basis for the dismissal of s police officer under the Act of February 1,1966. Coleman attempts to distinguish Faust on the ground that his adultery was engaged in out of the public’s view, rather than in motel rooms as in Faust, and that there was no testimony that his behavior had a debilitating effect on police morale as there was in Faust. The court below, we believe erroneously, fell in with this argument. We find no factual differences sufficient to remove this case from the purview of Faust. Officer Faust also contended that only “public”, as opposed to “private”, adultery may be considered immoral or conduct unbecoming an officer. In response we stated that “we do not believe that a distinction between ‘private’ and ‘public’ immorality or conduct has any bearing on the decision here. ...” 22 Pa. Commonwealth Ct. at 130, 347 A.2d at 769. Moreover, it is evident from a reading of Faust that evidence that adultery “affects the morale of the [police] department and re
Coleman’s testimony provided ample evidence of the adulterous relationship. Therefore, the Commission’s finding that Coleman engaged in immoral conduct unbecoming a police officer should not have been disturbed. Since Coleman was subject to dismissal for this conduct, it is unnecessary for us to discuss in detail the three other charges lodged against him. The evidence on each is conflicting but there is sufficient competent evidence supporting the Commission’s findings against Coleman on the charge of directing profane and insulting language to a subordinate. We agree with the trial court that the two remaining charges were matters concerning judgment, not behavior . Finally, there being sufficient evidence sustaining charges founded solely on The Borough Code, it is unnecessary to discuss Coleman’s complaints concerning findings of violations of ordinances adopted after the time he allegedly committed the offending acts.
Order
And Now, this 26th day of October, 1979, the order of the Court of Common Pleas of Delaware County, No. 77-9383, is reversed and the decision of the Council for the Borough of Darby, discharging Paul J. Coleman as Chief of Police of the Borough of Darby, is reinstated.