Keith GUTHRIE, Robert Garvin, Henry Riebold, Terrence Lockard, Robert K. Thomas, John Shook, Barry Almy and W. Gregory Ferrell, Appellants, v. The BOROUGH OF WILKINSBURG, Appellee.
478 A.2d 1279
Supreme Court of Pennsylvania
June 28, 1984
We have consistently held that a new trial should not be granted on a mere conflict in the testimony. See e.g. Burrell v. Phila. Electric Co., 438 Pa. 286, 265 A.2d 516 (1970). Thus, we hold that the Superior Court erred in reversing the trial court.
In addition to the complaints addressed above, plaintiffs/appellees have raised a number of subsidiary issues concerning evidentiary rulings made by the trial judge which were affirmed by the Superior Court. However, appellees failed to file a cross appeal, and therefore these issues are not properly before us.
The order granting a new trial is reversed and we reinstate the judgment of the Court of Common Pleas of Philadelphia County.
Paul V. Ressler, Wilkinsburg, Vincent Restauri, Jr., Ambridge, for Borough of Wilkinsburg.
Frank P. Tuplin, Deputy Atty. Gen., Philadelphia, for Commonwealth of Pennsylvania, amici curiae.
Virginia S. Cook, Pittsburgh, for Pennsylvania State Association of Boroughs.
Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON and ZAPPALA, JJ.
OPINION
McDERMOTT, Justice.
This case tests the outer limits of what procedural rights are required under our
In thirteen meetings, forty citizens were interviewed. Subsequently, the Council subpoenaed3 and interviewed twenty-two Wilkinsburg police officers whose names surfaced in the initial probe.
Upon the conclusion of the inquiry, the Borough Council proposed and adopted six findings and conclusions regarding instances of police misconduct. On December 27, 1979, the Council voted to issue written warnings to seven police officers and to place the warnings in the officers’ personnel files. The statements addressed improper or questionable conduct ranging from physical and verbal abuse to instances where regulations and procedures were not adhered to.4
The officers were allowed to place a counterstatement concerning the charges in their personnel files, but chose not to exercise this option. No further action was taken against the officers: they were not fired, demoted or suspended, nor were their salaries reduced or frozen.
The officers petitioned for review of the Borough Council‘s actions in the Allegheny County Court of Common Pleas under the
Whether a hearing and notice is required under the
§ 504. Hearing and Record
No adjudication of a Commonwealth agency shall be valid as to any party unless he shall have been afforded reasonable notice of a hearing and an opportunity to be heard. All testimony shall be stenographically recorded
and a full and complete record shall be kept of the proceedings.
An “adjudication” is defined in Section 101 of the Act as:
Any final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities, duties, liabilities or obligations of any or all of the parties to the proceeding in which the adjudication is made....
Thus, for a letter of warning to qualify as an adjudication, requiring notice and a hearing, a two-prong test must be met: 1) the letter must be an agency‘s final order, decree, decision, determination or ruling and 2) it must impact on a person‘s personal or property rights, privileges, immunities, duties, liabilities or obligations. See Kerr v. Commonwealth, Department of State, 35 Pa.Cmwlth.Ct. 330, 333-34, 385 A.2d 1038, 1039 (1978). (“[A] letter can constitute an adjudication in instances where it is a final directive of final determination by the agency affecting personal or property rights.“)5
It is evident that the letters of warning in this case constituted a final decision, determination or ruling. The letters embodied the Council‘s collective decision, and were intended to announce their final action on this matter.
No doubt the officers here had an enforceable property interest in their continued employment as police officers.7 If the officers were dismissed, suspended or demoted they would have been entitled to notice and a hearing, and an appeal under the
In Sterling v. Commonwealth, Department of Environmental Resources, 504 Pa. 7, 470 A.2d 101 (1983), we strictly construed the term “demotion,” concluding that a state employee whose compensation was reduced by two
The interest appellants are attempting to protect is an intangible one: a clean personnel file looking towards future promotion with the department and/or future employment elsewhere. To have a protectable property interest, “a person must clearly have more than an abstract need or desire for it.” Board of Regents v. Roth, supra, 408 U.S. at 577, 92 S.Ct. at 2709. Appellants have failed to establish any concrete injury which has flowed from the issuance of the warnings. The mere theoretical effect on possible promotions or future employment prospects is too abstract to constitute a property interest. Neither due process nor the
Apart from a property interest, we must also examine whether the action of the Borough intruded upon any personal right, privilege or liberty interest, converting the issuance of the letters into an adjudication. In some instances, government action seriously criticizing an individual has been held to implicate a liberty interest, triggering due process rights.9 However, a government inspired criti-
In Paul, the Court said that its prior Roth holding did not indicate “that a hearing would be required each time the state in its capacity as employer might be considered responsible for a statement defaming an employee who continues to be employed.” Id. at 710, 96 S.Ct. at 1165. (Emphasis supplied.) See Johnson v. University of Pittsburgh, 435 F.Supp. 1328, 1369-70 (W.D.Pa.1977) (“In cases where a stigma is placed upon the plaintiff as a result of charges of immorality or dishonesty in connection with the termination then there must be a notice and a chance to be heard.... Making a person less attractive for employment is not a deprivation of liberty.“) citing, Codd v. Velger, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977). See also, Huff v. County of Butler, 524 F.Supp. 751 (W.D.Pa.1981); Sullivan v. Brown, 544 F.2d 279 (6th Cir.1976).
The term “personal rights,” as used in the
However, this broad language was severely limited in Paul v. Davis, 424 U.S. 693, 708, 96 S.Ct. 1155, 1164, 47 L.Ed.2d 405 (1976). See Horton v. Goose Creek Independent School District, 690 F.2d 470, 483 (5th Cir.1982) cert. denied U.S. — , 103 S.Ct. 3536, 77 L.Ed.2d 1387 (1983).
Since the officers here were not discharged, demoted or suspended, there was no concrete alteration of legal status. No personal interest was involved.
Finally, we note that there are significant public policy reasons favoring our decision. Public employers require reasonable freedom to quickly sanction their employees when they do wrong. “It is indispensable to good government that a certain amount of discipline be maintained in the public service.” Zeber‘s Appeal, 398 Pa. 35, 43, 156 A.2d 821, 825 (1959). The purpose of such an action is not to punish, but to warn and instruct. A warning serves as a “useful tool to help the administrator correct minor problems before they grow into major ones.” Holt v. Board of Education of Webutuk Central School District, 52 N.Y.2d 625, 633, 439 N.Y.S.2d 839, 843, 422 N.E.2d 499, 503 (1981). Preserving a municipal corporation‘s flexibility in managing its employees is especially compelling when police officers are involved. See Fabio v. Civil Service Commission, 489 Pa. 309, 323-24, 414 A.2d 82, 90 (1980); Kelley v. Johnson, 425 U.S. 238, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976). Maintaining the public credibility of a community‘s police force is vital. Here, charges of misconduct adversely affected the reputation of the entire police force and the Borough Council acted to correct the problem and improve the image of the police force as well as the performance of the individual officers.
Furthermore, forcing municipalities to hold a hearing every time it wishes to sanction an employee could have a deleterious effect. Public employers might choose to look the other way at some infractions rather than expend the time, trouble and expense of a hearing in each instance. The ultimate effect of such a policy would be to allow the performance and image of public employees to slowly deteriorate.
Today‘s holding allows municipalities the freedom to choose a middle ground between ignoring some infractions
In holding as we do, we emphasize that a public employee is not without genuine recourse to protect his reputation. For instance, an employee confronted with the possibility of a letter of warning being placed in his personnel file has the opportunity to respond and place a counterstatement in his personnel file. As we noted earlier, the officers in this case had that option and apparently still have that option to this day.
Further, a public employee would be free to challenge an issued warning under a collective bargaining agreement‘s grievance procedure and have an unfair or fallacious document removed from a personnel file if an arbitrator finds an abuse to have occurred.
Holding that the letters of warning affect no personal or property rights so to transform the letters into an adjudication under the
NIX, C.J., concurs in the result.
LARSEN, J., files a dissenting opinion.
PAPADAKOS, J., did not participate in the consideration or decision of this case.
LARSEN, Justice, dissenting.
I agree with the majority‘s conclusion that the letters at issue in this case constituted final orders within the meaning of
It is clear in this case that appellants have an enforceable property interest in their continued employment as police officers. (At 256). I would go further and hold that, at least under the
There is no question that a written warning or reprimand placed in a police officer‘s personnel file will have an adverse effect upon the quality of his continued employment. Such a letter will be reviewed whenever questions concerning promotion, duty assignment, or job reclassification arise; these questions are sure to arise, and when they do, a warning or reprimand will adversely affect an officer‘s chances of obtaining promotions and special privileges, such as assignments to special police schools, which a police officer may request in order to enhance his knowledge and further his career. In addition, for at least five of the officers involved in this case, there is no assurance that the letters will ever be removed from their files, no matter how exemplary their behavior is in the future. Thus, even
In view of these realities, I think it is clear that the negative effects of the letters placed in appellants’ files are anything but intangible, remote or speculative. I would hold, therefore, that the placement of the warnings and reprimands in appellants’ personnel files constituted an adjudication—a final order affecting their property rights—within the meaning of
I also feel it necessary to note that the policy reasons cited by the majority in support of its conclusions are wholly without logic. The majority states that “[p]ublic employers require reasonable freedom to quickly sanction their employees when they do wrong ....” (At 259).
Yet appellee‘s own conduct belies any overriding need for speed in this case. The letters which are the subject of this case were not issued to appellants until after appellee had held thirteen meetings to interview citizens and additional meetings to interview twenty-two police officers. This investigation lasted from November, 1978 through June, 1979, and the report of the investigation was not submitted to the borough council for its consideration until December, 1979.
Further, there is no way for a public employer to know whether the employees it is sanctioning have done anything wrong, unless it first affords them a hearing.
Indeed, it “has long been recognized that ‘fairness can rarely be obtained by secret, one-sided determinations of facts decisive of rights....‘” Fuentes v. Shevin, 407 U.S. 67, 81, 92 S.Ct. 1983, 1994, 32 L.Ed. 2d 556 (1972), quoting Joint Anti-Fascist Refugee Committee v. McGrath, supra, 341 U.S. at 170, 71 S.Ct. at 647. Allegheny Ludlum Steel Corporation v. Pennsylvania Public Utility Commission, 501 Pa. 71, 80, 459 A.2d 1218, 1222 (1983) (Larsen, J., dissenting). See also Sterling v. Commonwealth Department of Environmental Resources, 504 Pa. 7, 17, 470 A.2d 101, 106 (1983) (Larsen,
Finally, the majority views appellants’ ability to place counter-statements in their files as “genuine recourse to protect [their] reputation[s].” At 260. I cannot agree. Such counter-statements would only invite each superior who subsequently looks into the employee‘s personnel file to judge for himself just where the truth lies. I think that appellants should be afforded the certainty of a single judgment, rendered by an impartial arbiter after a hearing, rather than having to be judged anew each time their employment status is considered.
I would reverse the order of the Commonwealth Court and remand this case to the court of common pleas for further proceedings under the
Notes
To: Terrence Lockard
From: Wilkinsburg Borough Council
Subject: Warning—Abusive and Unprofessional Language and Conduct
This is an official warning for your use of abusive and unprofessional language and conduct in your interaction as a police officer with various citizens. If your pattern of conduct in this regard does not improve, you will be subject to disciplinary action in the future.
As a result of a Police Abuse Inquiry conducted by Borough Council in conjunction with the Community Advocate Unit of the Pennsylvania Attorney General‘s Office, Borough Council was presented with information concerning your conduct relating to the arrests of:
William Montgomery—October 5, 1978 (Physical abuse toward William Montgomery)
Cornell Robinson—October 6, 1978 (Physical abuse toward Cornell Robinson)
James McVeigh—October 26, 1978 (Assisting in the misuse of police authority by another officer to resolve a personal dispute)
Evidence concerning this conduct came to the attention of Borough Council as a result of the Police Abuse Inquiry mentioned above. In connection with this Inquiry, you appeared before Borough Council and others on July 2, 1979, to answer questions and provide any additional information or documents which you deemed relevant. Your responses at that time have been considered in determining what action Borough Council believes to be appropriate.
A copy of this warning will be placed in your personnel file and should behavior continue in this manner, disciplinary action will be taken.
This was one of the more serious cases. Two officers received letters questioning their tactics used in conducting an investigation. These latter letters were to be withdrawn from their personnel files after one year.
In Callahan v. Pennsylvania State Police, 494 Pa. 461, 431 A.2d 946 (1981), we held that a Pennsylvania State Policeman was deserving of notice and a hearing to determine his right to employee benefits, statutorily defined rights, and that a letter refusing those benefits was not a valid adjudication because of the State‘s failure to afford the requisites of notice and an opportunity to be heard.
If we were confronted with the issue, however, we would have to answer that there was no due process violation. Just as there is no property right under the Local Agency Law, no statute protects a local agency employee‘s right to question an issued warning at a hearing. Likewise, no liberty interest is threatened here as we will discuss later in this opinion.