28 Pa. Commw. 103 | Pa. Commw. Ct. | 1977
Opinion by
The issue before us in this borough civil service appeal is whether the Civil Service Commission of
Officer Zimmett, a member of the police force of the Borough of St. Marys who had recently been demoted from chief to patrolman, reported for duty on July 15, 1975 with the odor of intoxicants on his breath. After verifying the report of an officer that Zimmett was intoxicated, the acting police chief sent Zimmett home. The next day the mayor of St. Marys suspended Zimmett pending a meeting of the Council, citing intoxication among the reasons for the action. At a meeting which the mayor attended, the Council dismissed Zimmett on the same charges. Zimmett demanded a hearing before the Commission under Section 1191 of The Borough Code, Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. §16191.
The Commission held a hearing at which four members of the police department testified concerning Zimmett’s behavior. In particular, there was testimony that his speech was slurred, that his breath smelled of intoxicants, and that he had difficulty avoiding walls and balancing himself on chairs. Other testimony adduced at the hearing tended to show that the other charges against Zimmett either stemmed from the intoxication-on-duty charge or were violations of ambiguous police department policies. The Commission therefore dismissed all but the • intoxication charge. Moreover, the Commission reduced the penalty imposed by the Council from dismissal to suspension for 120 days, opining that, had the Council only considered the intoxication charge, it would not have dismissed Zimmett. Section 1191 was cited as authority for the Commission’s power to modify Council actions.
Our scope of review in a borough civil service appeal where the court below has not taken additional evidence is limited to determining whether the commission abused its discretion or committed an error of law. Banks v. Board of Commissioners of Upper Moreland Township, 7 Pa. Commonwealth Ct. 393, 298 A.2d 923 (1973); Gabauer v. Civil Service Commission, 6 Pa. Commonwealth Ct. 646, 297 A.2d 507 (1972). In exercising this review, we are mindful of the role of courts in reviewing borough civil service appeals. Our Supreme Court has said in Baker Case, 409 Pa. 143, 147, 185 A.2d 521, 523 (1962), that “ [t]he function of the courts is merely to make sure that just cause for dismissal exists, both factually and legally, and that the municipal officials have not abused their discretion in imposing the punishment in question. It is not our function to decide what we would have done under the circumstances if we had been Baker’s superiors.” (Emphasis in original.)
Factually, the record contains substantial evidence to support a finding that Zimmett was intoxicated while on duty. Section 1190 of The Borough Code, 53 P.S. §46190, authorizes suspension or removal of a person from the police force of any borough for intoxication while on duty. Therefore, just cause
Turning to the question of abuse of discretion, we note that in its opinion the Commission apparently concluded that a suspension was a more reasonable penalty than a dismissal. The Commission then decided to supplant the Council’s penalty with its own for two reasons. First, speculating that the Council took all the charges into consideration in dismissing Zimmett, the Commission concluded that, had the Council only considered the intoxication charge, it would not have imposed a dismissal. Second, the Commission found authority for its action in Section 1191 of The Borough Code.
We find these reasons to be wholly inadequate to supplant the discretion of the Council. The Commission’s guess as to what the Council would not have done demonstrates a complete lack of deference to the discretion of those primarily charged with maintaining an efficient and effective police force. Moreover, Section 1191 is devoid of language which would bestow upon the Commission the unbridled discretion to modify Council actions that it here seeks us to ac
Order affirmed.
Order
And Now, this 6th day of January, 1977, the order of the Court of Common Pleas of Elk County, dated March 1, 1976, is affirmed.
This is essentially the same test enunciated by Judge Biatt when, speaking for this Court in Barilcs, supra, she stated:
We can find nothing in this section which would authorize the Commission to modify a penalty imposed by the Township when it also finds that, as a matter of law, the Township has produced sufficient evidence to justify the penalty it has imposed. The purpose of the Commission clearly seems to be to protect employees from arbitrary or discriminatory Township action, not to usurp the functions of elected Township officials in the administration of their duties.
7 Pa. Commonwealth Ct. at 398, 298 A.2d at 925.
*107 In Banks we were dealing with Section 645 of The First Class Township Code, Act of June 24, 1931, P.L. 1206, as amended, 53 P.S. §55645. However, that section is substantially identical to Section 1191 of The Borough Code, the difference lying in the right of appeal.
Section 1191 provides in pertinent part:
All parties concerned shall have immediate right of appeal to the court of common pleas of the county, and the ease shall there be determined as the court deems proper. No order of suspension made by the commission shall be for a longer period than one year. Such appeal shall be taken within sixty days from the date of entry by the commission of its final order and shall be by petition. Upon such appeal being taken and docketed, the court of common pleas shall fix a day for a hearing and shall proceed to hear the appeal on the original record and such additional proof or testimony as the parties concerned may desire to offer in evidence. The decision of the court affirming or revising the decision of the commission shall be final, and the employe shall be suspended, discharged, demoted or reinstated in accordance with the order of court.