Brown v. Commonwealth, Pennsylvania State Police

502 A.2d 126, 509 Pa. 316, 1985 Pa. LEXIS 438
CourtSupreme Court of Pennsylvania
DecidedDecember 6, 1985
DocketNo. 61 E.D. Appeal Docket 1985
StatusPublished
Cited by2 cases

This text of 502 A.2d 126 (Brown v. Commonwealth, Pennsylvania State Police) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Commonwealth, Pennsylvania State Police, 502 A.2d 126, 509 Pa. 316, 1985 Pa. LEXIS 438 (Pa. 1985).

Opinion

OPINION OF THE COURT

FLAHERTY, Justice.

We granted the petition for allowánce of appeal of Henry H. Brown to consider the propriety of a Commonwealth Court panel’s affirmance of Sgt. Brown’s dismissal from the Pennsylvania State Police. Sgt. Brown was charged with violating state police field regulations concerning unbecoming conduct, conformance to laws and competence.1 The [319]*319facts are aptly set forth in the lower court opinion as follows:

The first two charges arose out of an incident which occurred on February 23, 1983. Although there is conflicting testimony regarding the events of that evening, substantial evidence supports the board’s findings that during an altercation between Brown and a female acquaintance on a street in the city of Lancaster, Brown engaged in threatening and physically abusive action.4 His actions and loud words prompted people nearby to summon the Lancaster police. Brown argued with the responding officers, who took him into custody for disorderly conduct, but soon released him without filing formal charges. The board concluded (1) that Brown had conducted himself in a manner unbecoming a police officer, and, (2) having engaged in disorderly conduct under section 5503 of the Pennsylvania Crimes Code, was therefore in violation of the conformance-to-laws field regulation.
In passing on the third charge facing Brown, the board reviewed his past disciplinary action reports relevant to the board’s consideration of the charge of incompetency; the applicable field regulation provides that a written record of disciplinary actions detailing repeated infractions is prima facie evidence of incompetence.
Despite documentation of twenty instances of disciplinary action during Brown’s fifteen years with the state police, the board voted 2 to 1 against a finding of incompetence. The board imposed a thirty-day suspension for the conformance-to-laws violation, but recommended that the commissioner dismiss Brown for unbecoming conduct, which the commissioner did.

[320]*320Id. at 644-646, 482 A.2d at 1361 (1984).

Appellant first asserts he was denied due process of law in that the state police “fail[ed] to ensure that investigative reports, not made part of the record, were kept from the Commissioner.” The practice assailed by appellant was formerly prescribed in the State Police Operations Manual, 7-2, p. 23.4, ¶ (E)2A which provided in relevant part:

When the investigation involves Department personnel, the original copy, with in-depth endorsements by the Trooper Commander and Area Commander, shall be forwarded through channels to the Commissioner. A reproduced copy of the report, with an in-depth endorsement by the Troop Commander, shall be immediately forwarded under separate cover directly to the Commissioner ONLY when the results of the investigation substantiate the complaint and/or Disciplinary Action is recommended.

The foregoing was dealt with in Soja v. Pennsylvania State Police, 500 Pa. 188, 193 n. 1, 455 A.2d 613, 615 n. 1 (1982), wherein the practice of providing confidential, preliminary investigative reports to the Commissioner, the ultimate arbiter in matters courts martial, prior to commencement of the hearing, was held to be violative of due process as it invites imposition of discipline based on information which the employee is powerless to refute and which escapes review by a reviewing court. We, thus, directed the state police to redesign their disciplinary procedures to prevent the Commissioner’s review of investigative reports in advance of the imposition of discipline. We continue to adhere to our ruling in Soja.

The instant controversy arises because the pertinent provision of the State Police Manual was not revised in accordance with our directive in Soja until October 28, 1983, ten months after Soja and nearly three weeks after appellant’s [321]*321court martial. Thus, on its face, the technical requirement of Soja, to-wit, revision of the manual, was not complied with in this case. However, the record contains sworn testimony of the Trial Judge Advocate that the spirit of Soja has been complied with at all times since the date of that decision.2 As the underlying incident giving rise to these proceedings did not occur until February 23, 1983, almost two months after the date of our decision in Soja, on this record we must presume that the state police complied with the spirit of that ruling. Quod fieri debet facile praesumitur.

Appellant argues the failure of the state police to forward appellant’s own version of the incident of February 23, 1983 to the Governor when approval for the court martial was sought denied him due process of law. This argument is without merit. The court-martial board is the body charged with the responsibility to hear all evidence, resolve issues of credibility and make factual findings, 71 P.S. § 251(b)(2) (Supp.1985). Because the Governor’s involvement is limited to review of written statements, he is powerless to resolve the issues of credibility that would necessarily result from being presented with two versions of the underlying incident. Thus, presenting the Governor with the employee’s version of the incident out of which court-martial proceedings are urged cannot further a determination of the question whether seeking the employee’s termination from the force is warranted. As artfully stated by Judge Craig, below: “The Governor’s role at this level is not to weigh conflicting evidence and issue an ultimate adjudication of guilt or innocence, but only to make a preliminary determination as to whether the charges warrant convening the court martial board, analogous to a determination of probable cause to issue an arrest warrant. [322]*322See Pa.R.Crim.P. 119. To require the Governor to consider an accused officer’s version of the facts would needlessly thrust upon the Governor an adjudicatory function not intended by section 205 [of the Administrative Code, 71 P.S. § 65(e) ].” Brown v. Comm., Pennsylvania State Police, supra, 85 Pa. Commonwealth Ct. at 648, 482 A.2d at 1363. Cf. Comm., Pennsylvania State Police v. Swaydis, 504 Pa. 19, 470 A.2d 107 (1983) (fact that criminal charges, upon which was based court-martial proceeding, were dismissed was not material fact to be considered by Governor in deciding whether to approve court-martial proceeding, and failure to provide notice of same to Governor did not render court-martial proceeding void.)

Next appellant challenges the failure of the Commissioner to make detailed findings of fact and conclusions of law. 2 Pa.C.S.A. § 507 (Supp.1985) provides:

§ 507. Contents and service of adjudications
All adjudications of a Commonwealth agency shall be in writing, shall contain findings and the reasons for the adjudication, and shall be served upon all parties or their counsel personally, or by mail.

Act of April 2, 1978, P.L. 202, No. 53, § 5.

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502 A.2d 126, 509 Pa. 316, 1985 Pa. LEXIS 438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-commonwealth-pennsylvania-state-police-pa-1985.