Nicholas FABIO, Appellant, v. CIVIL SERVICE COMMISSION OF the CITY OF PHILADELPHIA.
Supreme Court of Pennsylvania.
Argued Oct. 16, 1979. Decided April 30, 1980.
414 A.2d 82
James M. Penny, Jr., Asst. City Sol., Ralph J. Teti, Senior Trial Asst., Philadelphia, for appellee.
Before EAGEN, C. J., and O‘BRIEN, ROBERTS, NIX, MANDERINO, LARSEN and FLAHERTY, JJ.
NIX, Justice.*
The Philadelphia Civil Service Commission held that appellant, Nicholas Fabio, was guilty of “conduct unbecoming an officer,”1 and ordered his dismissal from the Philadelphia Police Department. The Common Pleas Court of Philadelphia and the Commonwealth Court affirmed appellant‘s dismissal. 30 Pa.Cmwlth. 203, 373 A.2d 751 (1977). We granted review2 in order to determine the constitutionality of Article I, section 1.75 of the Philadelphia Police Duty Manual.
Appellant joined the Philadelphia Police Department in November 1969. He was rated “overall superior” in his last performance report. On October 1, 1973, appellant‘s commanding officer received a telephone call from John Gleason, appellant‘s father-in-law. Mr. Gleason stated that he wished to register a complaint against Police Officer Steven Richman for “stealing” his daughter away from the appellant. Mr. Gleason also asserted that Officer Richman was responsible for arranging his younger daughter, Helen, to have sexual relations with other police officers.
As a result of this telephone conversation, appellant‘s commanding officer commenced an investigation. The investigation disclosed that appellant and his wife were having marital problems and that appellant was convinced that an extra-marital sexual experience would improve their marriage. Interviews with appellant‘s wife revealed that appellant had been continuously urging her to have a sexual affair with another man and that she finally consented.
Based upon the above activities, the appellant was charged with violating Article I, Section 1.75 of the Philadelphia Police Duty Manual. The Police Board of Inquiry found appellant guilty and recommended dismissal. The Philadelphia Civil Service Commission, Court of Common Pleas of Philadelphia and the Commonwealth Court of Pennsylvania affirmed appellant‘s dismissal.
On appeal appellant first contends that on its face, Article I, Section 1.75 of the Philadelphia Police Duty Manual is unconstitutionally void for vagueness. A law is void on its face if it is so vague that persons “of common intelligence must necessarily guess at its meaning and differ as to its application.” Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). See also, Note, “The void for vagueness doctrine in the Supreme Court,” 109 U.Pa.L.Rev. 67 (1960). The void for vagueness doctrine incorporates the due process notions of fair notice or warning. Grayned v. Rockford, 408 U.S. 104, 108–109 n. 4, 92 S.Ct. 2294, 2298–2299, 33 L.Ed.2d 222 (1972); Papachristou v. Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1971); Commonwealth v. Skufca, 457 Pa. 124, 131, 321 A.2d 889 (1974). Also the doctrine mandates that lawmakers set reasonably clear guidelines for law enforcement officers and triers of fact in order to prevent “arbitrary and discriminating enforcement.” Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1973); see also Commonwealth v. Skufca, 457 Pa. at 131, 321 A.2d at 893. Therefore, in reviewing a void for vagueness challenge,
Although at first blush a law may appear vague on its face and those subject to it without fair notice, however, it may withstand a constitutional challenge if it has been narrowed by judicial interpretation, custom and usage, see e. g., Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974); Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1973); Dynes v. Hoover, 20 How. 65, 15 L.Ed. 838 (1857). Despite appellant‘s objections to the contrary, the offense for which he was dismissed, “conduct unbecoming an officer,” is not a nebulous or novel concept. Conceived in Great Britain,4 the standard of “conduct unbecoming an officer” was adopted by the Continental Congress for the governance of the army during the Revolutionary War.5 Since 1775, the offense has appeared in the United States military disciplinary codes. Moreover, many states have adopted the standard of “conduct unbecoming an officer” for their police and fire departments disciplinary codes.6 Thus, it appears that the phrase “conduct unbecoming an officer” has been continuously used and successfully implemented since the eighteenth century.
In Pennsylvania, our courts’ continuous construction8 of the phrase “conduct unbecoming an officer” has resulted in
Unbecoming conduct on the part of a municipal employee, especially a policeman or fireman, is any conduct which adversely affects the morale or efficiency of the bureau to which he is assigned. It is indispensable to good government that a certain amount of discipline be maintained in the public service. Unbecoming conduct is also any conduct which has a tendency to destroy public respect for municipal employees and confidence in the operation of municipal services. It is not necessary that the alleged conduct be criminal in character nor that it be proved beyond a reasonable doubt.
Id., 398 Pa. at 43, 156 A.2d at 825; Baker Case, 409 Pa. 143, 146, 185 A.2d 521 (1962).
Further, our courts have ruled upon specific types of behavior which are deemed to be unbecoming conduct. See e. g., Baker Case, supra (presence at an illegal gambling club); Vega Appeal, 383 Pa. 44, 117 A.2d 736 (1955) (not taking a woman acquaintance directly home, but instead making improper advances to her, or signing Mr. and Mrs. in a hotel registry, while not accompanied by a spouse); Vandergrift Borough v. Polito, 407 Pa. 286, 180 A.2d 215 (1962) (adultery); Zeber Appeal, 398 Pa. 35, 156 A.2d 821 (1959) (sex with a retarded sixteen year old girl); DiCiacco v. Civil Service Comm. of Phila., 37 Pa.Cmwlth. 77, 389 A.2d 703 (1978) (illegally retaining possession of heroin and giving it in exchange for narcotic sale information); and Oswald v. Allentown, 36 Pa.Cmwlth. 238, 388 A.2d 1128 (1978) (patrolman providing access to, and use of an apartment unit to
Additionally, it would be impracticable for the Police Department to write § 1.75 of its Duty Manual with greater specificity. The title of Article I of the Philadelphia Police Department Duty Manual is “Conduct Unbecoming an Officer.” Within Article I there are fifteen sections detailing separate offenses which constitute unbecoming conduct. These separate prohibitions range from § 1.20, “idle conversations with known gamblers while on or off duty“; § 1.60, “odor of alcohol on breath“; to § 1.45, “using rude or insulting language or conduct offensive to the public.” Appellant was dismissed for violation of the last section [section 1.75] which provides “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.” The Duty Manual “prohibitions may not satisfy those intent on finding fault at any cost, they are set up in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with.” CSC v. Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973).9
The United States Supreme Court has recognized that “it is not feasible or necessary for the Government to spell out in detail all that conduct which will result in retaliation. The most conscientious of codes that define prohibited conduct of employees includes ‘catch-all’ clauses prohibiting employee ‘misconduct,’ ‘immorality’ or ‘conduct unbecoming.‘” Arnett v. Kennedy, 416 U.S. 134, 161, 94 S.Ct. 1633, 1648, 40 L.Ed.2d 15 (1973), quoting Meehan v. Macy, 392 F.2d 822, 835 (D.C.Cir.1968). The courts have also realized that there are areas of human conduct where, because of the nature of the problems presented, lawmakers cannot establish standards with precision. Smith v. Goguen, 415 U.S. 566, 581, 94 S.Ct. 1242, 1251, 39 L.Ed.2d 605 (1973). Lawmakers are not confined to a choice of either enacting a detailed code of employee conduct or having no code. Arnett v. Kennedy, supra. In conclusion, there is no merit to appellant‘s argument that Police Department Duty Manual § 1.75 is void for vagueness and denies him due process of law.
Next, appellant asserts that section 1.75 is unconstitutional as applied to him. A law may be clearly applicable to a “hard core” of conduct but of questionable applicability to other conduct. In such instances, a court may hold the law unconstitutional as applied, yet not hold the law invalid on its face. But, one to whose conduct the law clearly applies may not challenge it on the basis that it is unconstitutional as applied to others. Parker v. Levy, 417 U.S. 733, 760, 94 S.Ct. 2547, 2563, 41 L.Ed.2d 439 (1974). Appellant sets forth two reasons why section 1.75 as applied denied him due process: (1) appellant was given no notice that the particular conduct in which he participated was offensive; and (2) the initiation of proceedings against the appellant was an unconstitutional invasion into appellant‘s privacy. We will discuss each objection seriatum.
Appellant has no basis to claim that he had no notice of what conduct was required of him. First, our courts have made clear that a police officer has a duty to maintain an honorable official, as well as private life.
Twentieth Century America has the right to demand for itself, and the obligation to secure for its citizens, law enforcement personnel whose conduct is above and beyond reproach. The police officer is expected to conduct himself lawfully and properly to bring honor and respect to the law which he is sworn and duty-bound to uphold. He who fails to so comport brings upon the law grave shadows of public distrust. We demand from our law enforcement officers, and properly so, adherence to demanding standards which are higher than those applied to many other professions. It is a standard which demands more than a forbearance from overt and indictable illegal conduct. It demands that in both an officer‘s private and official lives he do nothing to bring dishonor upon his noble calling and in no way contribute to a weakening of the public confidence and trust of which he is a repository.
Cerceo v. Darby, 3 Pa.Cmwlth. 174, 183, 281 A.2d 251, 255 (1971).
Second, the Philadelphia Police Code of Ethics, to which appellant subscribed to at the time of his becoming a member of the force, mandates that appellant “keep his private life unsullied as an example to all . . . .” Clearly, this
While we recognize that extramarital sexual intercourse is not viewed with the same universal disapproval it received several decades ago,10 appellant‘s conduct cannot be classified as merely an adulterous liaison between consenting adults. Appellant was clearly the instigator of these activities and induced and urged fellow employees to participate. The impact of this conduct upon the morale of his fellow officers was best illustrated by the reluctant involvement of Officer Zglinicki.11 The situation was further exacerbated by the seduction of his wife‘s 18 year old sister. The potentially disruptive and explosive nature of these associa-
In his posture as the perpetrator of “hard core conduct” which any reasonable person must know would be cause for discipline or dismissal, appellant has no basis to challenge section 1.75 as being unconstitutional as applied. Meehan v. Macy, 392 F.2d 822, 835 (D.C.Cir.1968); Aiello v. Wilmington, 426 F.Supp. 1272, 1293 (1976). One who has a warning of a law‘s proscription is not entitled to attack the language of the act on the basis that it would not give similar warning to another, whose conduct might fall within its literal ambit. Parker v. Levy, 417 U.S. 733, 757, 94 S.Ct. 2547, 2562, 41 L.Ed.2d 439 (1974); Arnett v. Kennedy, 416 U.S. 134, 161–62, 94 S.Ct. 1633, 1647–1648, 40 L.Ed.2d 15 (1973).
Finally, we address appellant‘s argument that his dismissal violates his constitutionality protected right of privacy. The Constitution does not explicitly mention the right to privacy. However, the Supreme Court has:
found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564 [89 S.Ct. 1243, 1247, 22 L.Ed.2d 542] (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8–9, [88 S.Ct. 1868, 1872–1873, 20 L.Ed.2d 889] (1968); Katz v. United States, 389 U.S. 347, 350, [88 S.Ct. 507, 510, 19 L.Ed.2d 576] (1967); Boyd v. United States, 116 U.S. 616, [6 S.Ct. 524, 29 L.Ed. 746] (1886); see Olmstead v. United States, 277 U.S. 438, 478, [48 S.Ct. 564, 572, 72 L.Ed. 944] (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S. [479], at 484–485, [85 S.Ct. [1678] at 1681–1682, 14 L.Ed. 2d 510]; in the Ninth Amendment, id., at 486 [85 S.Ct. at 1682] (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399, [43 S.Ct. 625, 626, 67 L.Ed. 1042] (1923).
Moreover, defining the pale of the privacy right is equally elusive. The right to privacy, whether it be a “name for a grab bag of goodies,” or a unitary concept, see Tribe at 887, encompasses protection from governmental interference in:
activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12, [87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010] (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541–542, [62 S.Ct. 1110, 1113–1114, 86 L.Ed. 1655] (1942); contraception, Eisenstadt v. Baird, 405 U.S., [438] at 453–454, [92 S.Ct. 1029 at 1038–1039, 31 L.Ed.2d 349]; id., at 460, 463–465 [92 S.Ct. at 1042, 1043, 1044] (White J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166, [64 S.Ct. 438, 442, 88 L.Ed. 645] (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 [45 S.Ct. 571, 573, 69 L.Ed. 1070] (1925); Meyer v. Nebraska, supra.
Roe v. Wade, 410 U.S. at 153, 93 S.Ct. at 726–727.
Normally, once a court finds that an individual has a constitutionally protected right to privacy to engage in a course of conduct, the government‘s regulation limiting this right may only be justified by a “compelling state interest.” Roe v. Wade, 410 U.S. at 154, 93 S.Ct. at 727. But, the right to privacy is not an unqualified right, and at some point the government‘s interest may become sufficiently compelling to sustain a regulation of the activity. Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905); Buck v. Bell, 274 U.S. 200, 47 S.Ct. 584, 71 L.Ed. 1000 (1927).
In Pennsylvania, individuals have the right to engage in extramarital sexual activities free from governmental interference. Our Crimes Code has eliminated the crime of adultery, Act of December 6, 1972, P.L. 1482, No. 334, § 1,
In Kelley v. Johnson, 425 U.S. 238, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976), the Supreme Court held that a police officer challenging police department hair regulations must “demonstrate that there is no rational connection between the regulation, based as it is on the county‘s method of organizing its police force, and the promotion of safety of persons and property.” Id. at 247, 96 S.Ct. at 1446.
The law is hazy as to the appropriate standard of judicial scrutiny under the facts of the case at bar, but even under the strictest standards, the appellant‘s privacy argument has no merit. First, our courts hold police officers “to a higher standard of conduct than other citizens, including other public employees.” Faust v. P. C. S. C. of State College, 22 Pa.Cmwlth. 123, 128, 347 A.2d 765, 768 (1975). See also Baxter v. Philadelphia, 426 Pa. 240, 253, 231 A.2d 151 (1967). Second, the government has a compelling state interest in the maintenance of public respect for police officers. Undoubtedly, a great number of our citizenry would recognize that the appellant‘s course of conduct was morally offensive and would be contemptuous of police officers who engaged in such activity. As the Commonwealth Court has had an occasion to note: “It is not difficult to foresee a certain amount of insecurity on the part of absent spouses when they consider that an officer with adulterous tendencies may be summoned in their absence.” Faust v. P. C. S. C. of State College, 22 Pa.Cmwlth. at 130, 347 A.2d at 769. Third, the government has a compelling interest in employing efficient and effective law enforcement officers. Appel-
The government must tread lightly when it investigates and regulates the private activities of its employees. Public employers must be careful not to transform anachronistic notions of unacceptable social conduct into law. However, when an employee‘s private life is the center of rumors, when it adversely affects his fellow workers, when it corrupts his family members, and when it results in complaints to his employer, governmental intervention is warranted. Under such circumstances, the government successfully meets its burden in establishing the existence of a compelling interest in proscribing the employee‘s activities.
For the forgoing reasons, we hold that Police Department Duty Manual § 1.75 is not unconstitutionally void for vagueness on its face or as applied. We also hold that appellant‘s dismissal did not violate his constitutionally protected right to privacy. The order of the Commonwealth Court is affirmed.
MANDERINO, J., did not participate in the decision of this case.
ROBERTS, J., filed a concurring opinion.
LARSEN, J., concurred in the result.
ROBERTS, Justice, concurring.
I believe this record establishes sufficient grounds to justify appellant‘s dismissal from the Philadelphia Police Department, and accordingly concur in the result of the majority.
Appellant first challenges the constitutionality of section 1.75 on vagueness grounds. The vagueness doctrine requires notice to the actor that certain conduct is proscribed and bars overbroad application. See Note, the Void-for-Vagueness Doctrine, 109 U.Pa.L.Rev. 67 (1960). We have always recognized that when interpreting this type of regulation we give the regulation meaning “by reference to the ‘common sense of the community’ and [the regulation‘s] broad protective purposes.” Commonwealth v. Mack, 467 Pa. 613, 618, 359 A.2d 770, 772 (1976). Here, appellant cannot argue that he believed his conduct would not be deeply objectionable to the community that employed him as a law enforcement officer. Thus, I agree with the majority‘s conclusion that this departmental regulation provides sufficient notice to appellant that his conduct would result in his dismissal. See also, Zeber Appeal, 398 Pa. 35, 156 A.2d 821 (1959); Corle v. City of Oil City, 45 Pa.Cmwlth. 559, 405 A.2d 1104 (1979).
Notes
I told her that I didn‘t believe that she was finished with Nick, and I didn‘t want to get involved with anything that was going to cause me problems with my work.