Kovalchik v. Pennsylvania State Police, Background Investigation Appeal Board

613 A.2d 150, 149 Pa. Commw. 402, 1992 Pa. Commw. LEXIS 509
CourtCommonwealth Court of Pennsylvania
DecidedJuly 27, 1992
DocketNo. 2603 C.D. 1991
StatusPublished
Cited by2 cases

This text of 613 A.2d 150 (Kovalchik v. Pennsylvania State Police, Background Investigation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kovalchik v. Pennsylvania State Police, Background Investigation Appeal Board, 613 A.2d 150, 149 Pa. Commw. 402, 1992 Pa. Commw. LEXIS 509 (Pa. Ct. App. 1992).

Opinions

BARRY, Senior Judge.

Anthony J. Kovalchik appeals from a decision of the Pennsylvania State Police, Background Investigation Appeal Board (the Appeal Board) which disqualified him from employment as a cadet with the Pennsylvania State Police (the State Police). Kovalchik argues that his hearing before the Appeal Board did not comply with the requirements of 2 Pa.C.S. §§ 501-508, thereby depriving him of his due process rights. Kovalchik also argues that the Appeal Board relied upon evidence outside the record when rendering its decision and that the Appeal Board’s findings are not supported by substantial evidence. We agree with Kovalchik’s first argument, vacate the Appeal Board’s decision and remand for a new hearing.

Our disposition of this case requires a thorough review of the procedural history of the dispute. Kovalchik applied for employment with the State Police as a trooper. Kovalchik’s application was processed under the provisions of a consent decree entered into by the State Police and other parties in Bolden v. Pennsylvania State Police, Civ.A. No. 73-2604, E.D.Pa., June 20, 1974, modified, 73 F.R.D. 370 (1976). Pursuant to the terms of that consent decree, Kovalchik was subjected to a background investigation. That investigation revealed that Kovalchik had pled guilty to the summary offense of trespass; Kovalchik had not disclosed this on his application for employment. Further investigation revealed that the guilty plea arose from an incident which occurred while Kovalchik was enrolled in his final year at Kutztown State University. Kovalchik was alleged to have engaged in a scuffle at a tavern and another altercation with the same individual at a private party later the same evening.

Because of the results of the background investigation, Kovalchik received a letter from the State Police informing him that the Background Investigation Screening Board (the Screening Board) had disqualified him from employment as a cadet. The letter listed the grounds for disqualification as: (1) the intentional omission of the criminal charges and trespass guilty plea from his application, and (2) lack of self-[405]*405restraint and self-discipline because the offense grew out of fighting with other students. (State Police letter, 12/12/90.) The letter informed Kovalchik that he could submit a written rebuttal to the Appeal Board within twenty days.

Kovalchik submitted a written rebuttal. The intentional omission was explained by Kovalchik’s reliance on counsel who advised him to plead guilty to the summary offense and represented that there would be no need to list the summary offense on his employment application to the State Police. Kovalchik also disputed the second basis for disqualification, listing other incidents from his background demonstrating good character as well as several references. By letter of February 8, 1991, the Appeal Board affirmed the Screening Board decision.

Kovalchik filed an application for reconsideration and a request for a hearing with the Appeal Board. He claimed that he was denied his due process rights because he was finally disqualified without a hearing. Kovalchik also filed a petition for review with this Court. Pursuant to a stipulation between the parties, the petition for review was withdrawn and Kovalchik was granted a hearing before the Appeal Board. At this hearing, Kovalchik would be allowed to present evidence but the State Police would not present testimony or evidence to support its position. The stipulation made clear that Kovalchik was not being granted hearing in the nature of an adversarial proceeding. Both the State Police and Kovalchik reserved the right to raise the issue of Kovalchik’s right to a hearing in later proceedings. (Letter from Chief Counsel of the Pennsylvania State Police, 3/15/91; Letter from Kovalchik’s counsel, 3/26/91.)

Kovalchik testified at the Appeal Board hearing, explaining his failure to list the guilty plea to the trespass charge as reliance on the advice of counsel and explaining his role in the fighting incidents as a peacemaker defending himself. Kovalchik also presented witnesses who corroborated his version of both the omission and the fights, as well as character witnesses. The State Police presented no evidence. The Appeal Board determined that Kovalchik had not intentionally omit[406]*406ted the trespass guilty plea from his. application. The Appeal Board affirmed the disqualification, however, because Kovalchik had not left the private party as soon as he learned of the presence of the individuals with whom he had fought earlier that evening. The Appeal Board concluded that:

[T]he circumstances surrounding the incident reflect unfavorably upon, the applicant’s judgement, self-restraint, self-discipline and his ability to make sound decisions, because he did not exit the scene as soon as he learned of the potential for problems there. The applicant’s conduct with respect to this incident is sufficient, in and of itself, to warrant rejection.

(Appeal Board letter, 11/8/91.) The Appeal Board’s decision contains no discussion, or even mention, of the State Police argument to the Screening Board that disqualification was warranted based upon lack of self-restraint and self-discipline as evidenced by fighting with other students.

On appeal, the State Police argue that Kovalchik was not entitled to a hearing on the disqualification decision and that any defect in the hearing is harmless error. We disagree. Twice before this Court has considered'whether an applicant for a trooper position has a right to a hearing before disqualification from employment. Both times we decided that the existence of the Bolden consent decree conferred such a right. Henry v. Pennsylvania State Police, 80 Pa.Commonwealth Ct. 595, 471 A.2d 1341, reaffirmed, 86 Pa.Commonwealth Ct. 287, 484 A.2d 846 (1984) (en banc), appeal dismissed as improvidently granted, 512 Pa. 406, 517 A.2d 537 (1986). The original panel decision (Henry No. 1) noted that:

[T]he elaborate selection procedures provided in the consent decree, including the allowance of appeals from adverse decisions of the Screening Board, all designed to promote fairness in choosing cadets, can fairly be said to have established in persons aspiring to be cadets, a sufficient personal, if not property, interest in the integrity of the background investigation to render the Screening Board’s decisions adjudications. Since no adjudication is valid as to any party unless afforded reasonable notice of a hearing and [407]*407an opportunity to be heard, the Screening Board’s adjudication was invalid. 2 Pa.C.S. § 504.

Henry No. 1, 80 Pa.Commonwealth Ct. at 598, 471 A.2d at 1343. The en banc decision (Henry No. 2) reaffirmed this conclusion:

[T]he respondent’s contention that the right conferred on the applicant by decree to appeal to the Appeal Board does not include the rights to appear, to be heard and to produce evidence showing that the invidious facts found by the Screening Board are mistaken, seems to us to be marked by want of intelligent and reasonable consideration.

Henry No. 2, 86 Pa.Commonwealth Ct. at 292, 484 A.2d at 849.

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613 A.2d 150, 149 Pa. Commw. 402, 1992 Pa. Commw. LEXIS 509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kovalchik-v-pennsylvania-state-police-background-investigation-appeal-pacommwct-1992.