79 Pa. Commw. 28 | Pa. Commw. Ct. | 1983
Opinion by
This is the appeal of Theodore E. Elites from an order of the Court of .Common Pleas of Cambria County affirming the decision of the Board of .Supervisors of Upper Yoder Township to remove the appellant from his position of chief .of the township police force.
The appellant’s removal from office was for his failure to deliver to the assistant chief of police, on order of the Board of Supervisors, the logbooks in which police officers record their activities while on duty. In 1981 the Board directed the appellant to deliver all police records back to 1974 to the assistant chief. The appellant failed to deliver the logbooks for any year before the year 1979 and some of the logbooks for 1979 because he had thrown them out in the trash. The Board of Supervisors voted to remove the appellant and then formally charged him with violation of an official duty; inefficiency; neglect; intemperance; disobedience of orders; and conduct unbecoming an officer, each of which .charge is made a ground for removal by Section 2 .of the Act of June 15, 1951, P.L. 586, as amended, 53 P.S. §812.
At the public hearing conducted by the Board at the demand of the appellant, counsel for the appellant challenged one of the supervisors for bias on the ground that the appellant had charged him with a criminal offense. The lawyer appointed specially to
The Board concluded that the appellant’s destruction of the logbooks was conduct unbecoming an officer; inefficiency; neglect; intemperance; disobedience of orders; and violation of an official duty. The Board also noted that the appellant’s destruction of records was in their opinion a violation of Section 4911(a) (3) of the Pennsylvania Crimes Code, 18 Pa. C. S. §4911 (a) (3), which provides that a person commits a criminal offense when he intentionally and unlawfully destroys any record belonging to or kept by the government for information.
The appellant appealed his removal to the court of common pleas suggesting that the record made by the Board of Supervisors was not full and complete and requesting that additional evidence be heard by the court. The hearing judge heard the appellant’s additional evidence. This consisted of his testimony to the effect that he had never been ordered by the supervisors not to destroy logbooks; and that one of the supervisors took the logbooks and ¡other “garbage” from the township offices to the dump in a truck. He admitted however that he could not say that the supervisor knew that the logbooks were among the materials taken to the dump. Also, a supervisor who was in office at the time the appellant was ordered to deliver the logbooks to the assistant chief of police, but
The hearing judge overturned the Board of .Supervisors ’ removal action and ordered that the appellant be reduced to the rank of patrolman and that he be .suspended from duty for six months.
Both parties petitioned the lower court for reconsideration of the hearing judge’s order. The court en banc granted these applications and thereafter by vote of two to one vacated the hearing judge’s order •and affirmed the Board of Supervisors’ order of removal. The majority of the court included the hearing judge. In his opinion for the court en banc, the hearing judge wrote that it had been error for him to hear additional testimony because the record of the proceedings before the Board of Supervisors had in fact been full and complete, with reference to 2 Pa. C. S. §754(a) and (ib) providing respectively that “ [i]n the event that a full and complete record of the proceedings before the local agency was not made, the court may hear the appeal de novo, or . .. remand” and that if “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.” The court en banc upon review of the record made at the Board of Supervisors’ hearing affirmed the Board’s adjudication.
We have provided the history of the common pleas court proceedings as a basis for our conclusion that
The appellant presents two questions. The first is that of whether the evidence produced ¡at the Board of Supervisors’ hearing supports the conclusion that the appellant’s conduct was unbecoming an officer; inefficient; neglectful; intemperate; in disobedience of orders; or a violation of an official duty. Of course, it is not necessary that his actions fit neatly into each of these categories. We agree with the Board of Supervisors that the destruction of the logbooks without notice.or explanation was violation .of official duty, inefficiency, and neglect. It was also arguably intemperance and conduct unbecoming a police ¡chief.
The appellant also contends that the Board of Supervisors failed to prove that any harm had been done the township by his act of destroying the .police logbooks. The logbooks were governmental records and township property. They were no more the proper subject of destruction at the apparent whim of the chief of police, than the office safe. Indeed, since records belonging to and kept by the government for information are protected from intentional and unlawful destruction by provision of the .Crimes Code, it would appear that a chief of police should be more astute to preserve records than .other public property committed to his charge;
The appellant also complains that his right to due process was violated by the commingling of the prose
The appellant also asserts that actual bias existed because the supervisor whom he had charged with a criminal offense did not refuse to act in response to his challenge. Not only had the charges against the supervisor been disposed of at the time of the hearing -by his placement in the Accelerated Rehabilitative Disposition Program, his participation was not crucial, the supervisors having voted 3-0 for the appellant’s removal.
Order affirmed.
Order
And Now, this 8th day of December, 1983, the order of the Court of Common Pleas of Cambria County in the above-captioned matter is affirmed.