OPINION OF THE COURT
NIX, Justice.
This is an appeal from an order of the Commonwealth Court affirming the action of the State Police Commissioner in accepting the recommendation of dismissal of appellant entered by the Court Martial Board of the Pennsylvania State Police. Soja v. Pennsylvania State Police, 43 Pa. Commonwealth Ct. 226, 402 A.2d 281 (1979). A number of objections have been raised by appellant challenging his dismissal. We granted review to address the question as to whether the procedures employed in the decision-making process violated his constitutional rights to procedural due process and a fair hearing. Specifically, appellant alleges that the requirement that all preliminary investigations, reports and recommendations be forwarded to the Commis[193]*193sioner prior to the institution of the process, conflicts with the Commissioner’s primary role in the adjudicatory process of accepting or rejecting the Court Martial Board’s (Board) recommendation of dismissal. See, State Police Operations Manual 7-2, p. 23.4, paragraph (E)2a.1
The essence of the due process complaint is that in view of the Commissioner’s ultimate role as the final arbiter, it is improper for him to have available information which may not have been contained on the record upon which the recommendation of dismissal was predicated. It is suggested that such a procedure possesses the potential of depriving the accused trooper of a meaningful right of confrontation and adequate review. For the reasons that follow, we find that this argument has substance and find the procedure defective.
The principle that due process is fully applicable to adjudicative hearings involving substantial property rights before administrative tribunals is well established. Conestoga Nat’l Bank of Lancaster v. Patterson, 442 Pa. 289, 275 A.2d 6 (1971); Wiley v. Woods, 393 Pa. 341, 141 A.2d 844 (1958); Commonwealth ex rel. Chidsey v. Mallen, 360 Pa. 606, 63 A.2d 49 (1949); Pennsylvania State Athletic Comm. v. Bratton, 177 Pa.Super.Ct. 598, 112 A.2d 422 (1955). There is also little question that a member of the Pennsylvania State Police possesses an enforceable property right in his continued employment with the force. See, e.g., Bolden v. Pa. State Police, 371 F.Supp. 1096 (E.D.Pa.1974); Lamolinara v. Barger, 30 Pa. Commonwealth Ct. 307, 373 A.2d 788 (1977); cf. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).
[194]*194The prerequisites of due process have been frequently articulated:
[The] essential elements [of due process] are ‘notice and opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case before a tribunal having jurisdiction of the cause’: 12 Am.Jur. § 573, pp. 267, 268; Com. ex rel. Chidsey v. Keystone Mut. Cas. Co., 373 Pa, 105, 109, 95 A.2d 664; Carter v. Kubler, 320 U.S. 243, 88 L.Ed. 26, 64 S.Ct. 1; Ohio Bell Telephone v. Public Utilities Commission of Ohio, 301 U.S. 292, 81 L.Ed. 1093, 57 S.Ct. 724; Interstate Commerce Commission v. Louisville & Nashville Ry. Co., 227 U.S. 88, 57 L.Ed. 431, 33 S.Ct. 185; Jordan v. American Eagle Fire Insurance Company [83 U.S.App.D.C. 192], 169 F.2d 281, 288. Conestoga Nat’l Bank of Lancaster v. Patterson, supra 442 Pa. at 295, 275 A.2d at 9.
Moreover, “[i]n almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” Goldberg v. Kelly, 397 U.S. 254, 269, 90 S.Ct. 1011, 1021, 25 L.Ed.2d 287 (1970). The United States Supreme Court has stated:
Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice or jealousy. We had formalized these protections in the requirements of confrontation and cross examination. They have ancient roots.
Greene v. McElroy, 360 U.S. 474, 496, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377 (1959).
[195]*195Not only is the right of confrontation impaired, but meaningful review is impossible where the reviewing court does not have available to it all of the facts considered in reaching the judgment. U.S. ex rel. Kinney v. U.S. Fidelity & Guaranty Co., 222 U.S. 283, 32 S.Ct. 101, 56 L.Ed. 200 (1911); Guthrie v. Wilson, 40 Pa. 430 (1861). Under Section 711 of the Administrative Code, it is clear that the recommendation of the Court Martial Board is merely advisory and the Commissioner “may, in his discretion, follow or disregard ...” the Board’s view. It is therefore clear that the Commissioner’s role is that of the ultimate arbiter within the administrative process, not constrained by the findings of the Court Martial Board.
The present procedure which provides the Commissioner with information that may be prejudicial and inflammatory concerning the trooper is essentially unfair in two respects. First, if this information was not presented during the formal proceedings, the subject of the disciplinary action is denied the opportunity to contest its accuracy. Second, the tribunal reviewing the action by the Commissioner is left unaware of any such information that may have influenced the judgment.2
[196]*196The power of the Commissioner “to follow or disregard” recommendations as to the discipline to be imposed makes it critical that the factors which determine the exercise of that discretion by the Commissioner be made a part of the record.
The mere fact that the record may support the recommendation of the Board is of no moment where the Commissioner’s reasons for exercising his discretion in accepting or refusing the recommendation need not have been predicated upon the facts appearing upon the record before the Board.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION OF THE COURT
NIX, Justice.
This is an appeal from an order of the Commonwealth Court affirming the action of the State Police Commissioner in accepting the recommendation of dismissal of appellant entered by the Court Martial Board of the Pennsylvania State Police. Soja v. Pennsylvania State Police, 43 Pa. Commonwealth Ct. 226, 402 A.2d 281 (1979). A number of objections have been raised by appellant challenging his dismissal. We granted review to address the question as to whether the procedures employed in the decision-making process violated his constitutional rights to procedural due process and a fair hearing. Specifically, appellant alleges that the requirement that all preliminary investigations, reports and recommendations be forwarded to the Commis[193]*193sioner prior to the institution of the process, conflicts with the Commissioner’s primary role in the adjudicatory process of accepting or rejecting the Court Martial Board’s (Board) recommendation of dismissal. See, State Police Operations Manual 7-2, p. 23.4, paragraph (E)2a.1
The essence of the due process complaint is that in view of the Commissioner’s ultimate role as the final arbiter, it is improper for him to have available information which may not have been contained on the record upon which the recommendation of dismissal was predicated. It is suggested that such a procedure possesses the potential of depriving the accused trooper of a meaningful right of confrontation and adequate review. For the reasons that follow, we find that this argument has substance and find the procedure defective.
The principle that due process is fully applicable to adjudicative hearings involving substantial property rights before administrative tribunals is well established. Conestoga Nat’l Bank of Lancaster v. Patterson, 442 Pa. 289, 275 A.2d 6 (1971); Wiley v. Woods, 393 Pa. 341, 141 A.2d 844 (1958); Commonwealth ex rel. Chidsey v. Mallen, 360 Pa. 606, 63 A.2d 49 (1949); Pennsylvania State Athletic Comm. v. Bratton, 177 Pa.Super.Ct. 598, 112 A.2d 422 (1955). There is also little question that a member of the Pennsylvania State Police possesses an enforceable property right in his continued employment with the force. See, e.g., Bolden v. Pa. State Police, 371 F.Supp. 1096 (E.D.Pa.1974); Lamolinara v. Barger, 30 Pa. Commonwealth Ct. 307, 373 A.2d 788 (1977); cf. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).
[194]*194The prerequisites of due process have been frequently articulated:
[The] essential elements [of due process] are ‘notice and opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case before a tribunal having jurisdiction of the cause’: 12 Am.Jur. § 573, pp. 267, 268; Com. ex rel. Chidsey v. Keystone Mut. Cas. Co., 373 Pa, 105, 109, 95 A.2d 664; Carter v. Kubler, 320 U.S. 243, 88 L.Ed. 26, 64 S.Ct. 1; Ohio Bell Telephone v. Public Utilities Commission of Ohio, 301 U.S. 292, 81 L.Ed. 1093, 57 S.Ct. 724; Interstate Commerce Commission v. Louisville & Nashville Ry. Co., 227 U.S. 88, 57 L.Ed. 431, 33 S.Ct. 185; Jordan v. American Eagle Fire Insurance Company [83 U.S.App.D.C. 192], 169 F.2d 281, 288. Conestoga Nat’l Bank of Lancaster v. Patterson, supra 442 Pa. at 295, 275 A.2d at 9.
Moreover, “[i]n almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” Goldberg v. Kelly, 397 U.S. 254, 269, 90 S.Ct. 1011, 1021, 25 L.Ed.2d 287 (1970). The United States Supreme Court has stated:
Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice or jealousy. We had formalized these protections in the requirements of confrontation and cross examination. They have ancient roots.
Greene v. McElroy, 360 U.S. 474, 496, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377 (1959).
[195]*195Not only is the right of confrontation impaired, but meaningful review is impossible where the reviewing court does not have available to it all of the facts considered in reaching the judgment. U.S. ex rel. Kinney v. U.S. Fidelity & Guaranty Co., 222 U.S. 283, 32 S.Ct. 101, 56 L.Ed. 200 (1911); Guthrie v. Wilson, 40 Pa. 430 (1861). Under Section 711 of the Administrative Code, it is clear that the recommendation of the Court Martial Board is merely advisory and the Commissioner “may, in his discretion, follow or disregard ...” the Board’s view. It is therefore clear that the Commissioner’s role is that of the ultimate arbiter within the administrative process, not constrained by the findings of the Court Martial Board.
The present procedure which provides the Commissioner with information that may be prejudicial and inflammatory concerning the trooper is essentially unfair in two respects. First, if this information was not presented during the formal proceedings, the subject of the disciplinary action is denied the opportunity to contest its accuracy. Second, the tribunal reviewing the action by the Commissioner is left unaware of any such information that may have influenced the judgment.2
[196]*196The power of the Commissioner “to follow or disregard” recommendations as to the discipline to be imposed makes it critical that the factors which determine the exercise of that discretion by the Commissioner be made a part of the record.
The mere fact that the record may support the recommendation of the Board is of no moment where the Commissioner’s reasons for exercising his discretion in accepting or refusing the recommendation need not have been predicated upon the facts appearing upon the record before the Board. The result of the present scheme of discipline provides the possibility that information critical in the judgment of the Commissioner in the exercise of this discretion is insulated from refutation by the trooper and escapes consideration by a reviewing court.
When an administrative decision is based upon information secretly collected and not disclosed, due process concerns are clearly raised. See, e.g., United States v. Abilene & S. Ry. Co., 265 U.S. 274, 44 S.Ct. 565, 68 L.Ed. 1016 (1923); Shortz v. Farrell, 327 Pa. 81, 193 A. 20 (1937); Erie City v. Public Service Comm., 278 Pa. 512, 123 A. 471 (1924); Shenandoah Suburban Bus Lines Case, 158 Pa.Super.Ct. 638, 46 A.2d 26, aff’d 355 Pa. 521, 50 A.2d 301 (1946); English v. City of Long Beach, 35 Cal.2d 155, 217 P.2d 22 (1950); Thompson v. Lent, 53 App.Div.2d 721, 383 N.Y.S.2d [197]*197929 (1976); cf. Commonwealth v. Cronin, 336 Pa. 469, 9 A.2d 408 (1939); see generally, 18 A.L.R.2d 552.
In any proceeding that is judicial in nature, whether in a court or in an administrative agency, the process of decision must be governed by the basic principle of the exclusiveness of the record. ... Unless this principle is observed, the right to a hearing itself becomes meaningless. Of what real worth is the right to present evidence and to argue its significance at a formal hearing, if the one who decides the case may stray at will from the record in reaching his decision?
Mazza v. Cavicchia, 15 N.J. 498, 514, 105 A.2d 545, 554 (1954).
As noted by appellee, Mr. Soja has failed to identify any specific item prejudicial to him which may have been communicated to the Commissioner through this procedure and resulted in prejudicing his position. However, we do not accept the view that this blatant potential defect can be overlooked because of the inability of a party to demonstrate actual prejudice. By the very nature of the defect, the party subject to the harm would not be in a position of identifying the prejudice with specificity. To require a demonstration of prejudice in such a situation would render the safeguards of due process illusory.
We accept appellee’s argument that due process does not require a tabula rasa. Nevertheless, a distinction must be made where, as here, the system itself generates the impermissible information. A valid analogy cannot be properly made to situations where a finder of fact through happenstance acquires information from sources totally unrelated to the process. Moreover, even in instances where the information is inadvertently acquired, the finder of fact may be disqualified thereby, depending upon the nature of that information. Cf. Commonwealth v. Daugherty, 493 Pa. 273, 426 A.2d 104 (1981); Commonwealth v. Frazier, 471 Pa. 121, 369 A.2d 1224 (1977).
[198]*198Having concluded that the procedure is inherently defective, we address the question of determining the proper remedy. With reference to future matters, we now hold that the disciplinary procedure must be redesigned to exclude this type of information from the Commissioner.
A more difficult question is presented in attempting to fashion the appropriate relief for Mr. Soja. Since this particular defect touches only upon the validity of the Commissioner’s action, the taint at that stage does not tarnish the process prior to that point. It therefore follows that this defect does not establish a predicate for invalidating the action of the Board. If the Board’s findings are supported by the record and justify the recommended discipline, then Mr. Soja’s rights are protected in this instance by our review independent of the Commissioner’s recommendation.3
Appellant contends that the Board’s decision was not supported by sufficient evidence.4 The scope of review from a decision of a court martial dismissal is whether the Board’s findings are supported by substantial evidence. McCann v. Pennsylvania State Police, 17 Pa. Commonwealth Ct. 127, 330 A.2d 573 (1975); Grad v. Pennsylvania State Police, 14 Pa. Commonwealth Ct. 630, 324 A.2d 887 (1974); Luchansky v. Barger, 14 Pa. Commonwealth Ct. 26, 321 A.2d 376 (1974).
Trooper Soja was found guilty of three charges of miscon[199]*199duct. Under Charge I, Unbecoming Conduct, FR 1-1.01,5 appellant was found guilty of specifications III and V. Specification III stated:
On unknown date in March, 1976, Trooper Soja used derogatory language toward Stroud Township Code Enforcement Officer, Mr. Harry Miller, during a time when Mr. Miller was performing his assigned duties.
On direct testimony Trooper Soja admitted that he called Mr. Miller a “son of a bitch” while Miller, a building inspector, was engaged in an inspection of a home Soja was building. Mr. Miller and another individual present at the time so testified at the court martial hearing.
Specification V under Charge I stated as follows:
On unknown dates in February and March, 1977, Trooper Soja followed a course of conduct which involved Trooper Soja with a known criminal in an attempt to intervene in an arrest of this known criminal made in Orange, New Jersey, and subsequently an attempt by Trooper Soja to officially intercede in a dispute between this known criminal and a legitimate business enterprise: VanScoy Jewelers, Edwardsville, Pennsylvania. All of these incidents, either singularly or in total, constitute the type of conduct which could reasonably be expected to destroy public respect for State Police Officers and/or confidence in the Pennsylvania State Police. This is in violation of Pennsylvania State Police FR 1-1.01.
A review of the record convinces us that the Court Martial Board was correct in its finding that “Trooper Soja’s motive in appearing at the Orange, New Jersey Police Station and one VanScoy Jewelers in Edwardsville, Pennsylvania was to perform a favor for a personal friend and it was his intent by identifying himself as a Pennsylvania State Policeman to [200]*200obtain preferential treatment on a non police related matter.” (R. 575a)
Although there was conflicting testimony concerning Specification V, the Board, as an administrative hearing board, was presented with substantial evidence on the issue and was in the best position to assess the credibility of the witnesses and should not be second guessed on review. Cf. Taylor v. Unemp. Comp. Bd. of Review, 474 Pa. 351, 378 A.2d 829 (1977); Schwarzenbach v. Unemp. Comp. Bd. of Review, 36 Pa. Commonwealth Ct. 137, 387 A.2d 519 (1978); Recker v. Unemp. Bd. of Review, 30 Pa. Commonwealth Ct. 327, 313 A.2d 795 (1977).
Under Charge II, Violation of F.R. 1-1, § 2.01 Performance of Duty,6 appellant was found to have violated several specifications. Specification I provided:
During a substantial period of time subsequent to the issuance of Special Order 74-126, dated July 8, 1974, pertaining to outside employment, Trooper Soja did fail to adhere to and comply with the provisions of this Directive. Special Order 74-126, introduced at the Board, requires
that a member of the State Police obtain approval from the department before engaging in any outside employment. The Board found appellant guilty of this specification based on his own testimony and that of other witnesses. Under questioning by one Sergeant Berringer, Trooper Soja testified:
By Sergeant Berringer: [prosecuting officer]
Q. You are aware of the moonlighting regulation. It went into effect in 1968, again in 1972, et cetera. Were you aware that moonlighting would have been permitted in certain instances simply by asking the Commissioner and expaining your hardship?
A. Yes. I am.
[201]*201Q. Did you do that?
A. No. I didn’t.
Q. Why?
A. Because I had a little experience with the officers prior, and I didn’t think it was—
Q. Rather than attempt to obey the regulation, you just decided to disregard the regulation.
A. No. I gave it thought, but I didn’t do it.
Q. So you disregarded the regulation?
A. Yes.
See Soja’s direct testimony at R.408a.
Specification II, under Charge II, stated as follows: On July 12, 1977, Trooper Soja did fail to properly comply with a Department Regulation in that he failed to appear at a Third Level Disciplinary Proceeding in violation of FR 3-3.05(b)2.
Both of these incidents, [Specifications 1 and 2] either singularly or in total, constitute a willful disobedience to the requirements of strict adherence to the rules, regulations, manuals and directives promulgated by the Department. This is in violation of Pennsylvania State Police FR 1-2.01.
The Board found Trooper Soja guilty of Specification II based on his own testimony that he failed to appear at a scheduled Third Level Disciplinary Hearing.
The Board also found Trooper Soja guilty of two specifications under Charge IV, Competency.7 The first specifica[202]*202tions dealt primarily with Soja’s poor attitude and overall work performance; his failure to improve the quality of his written incident reports after repeated warnings; his low productivity; his poor relationship with his superiors as well as other members of the force (including quarreling and fighting); his failure to report to duty at assigned times; his failure to pay outstanding debts resulting from his off-duty construction business; his intervention in the arrest of a friend in New Jersey; associating with a known criminal not in the course of his official duties; displaying his State Police Badge while acting in an unofficial capacity, all of which resulted in prior disciplinary proceedings against Trooper Soja.8
[203]*203The Department invoked the provisions of Field Regulation FR 3-3.06D, Repeated Violations9 as the second specification under the Competency charges. Pursuant to FR 3-3.06, the level of punishment may be raised when several lesser level disciplinary violations have occurred within a two-year period, the result being that accumulated minor disciplinary infractions may warrant third level action and eventual dismissal from the force.
The Board found Trooper Soja guilty of both specifications of incompetency and unanimously recommended his dismissal. We have thoroughly reviewed the entire record of the court martial proceedings and find all the Board’s findings of guilt to be supported by “substantial evidence” and its recommendation to be appropriate.
Finally, appellant asserts three additional procedural issues which he claims requires a reversal of his dismissal: (1) Whether appellant is entitled to active representation of counsel in all stages of the Pennsylvania State Police disciplinary procedure; (2) whether the Commonwealth Documents Law requires the Pennsylvania Police Field Regulations concerning disciplinary procedures to be published in the Pennsylvania Bulletin; and (3) whether appellant was denied due process of law in that the legal [204]*204procedures used by the Pennsylvania State Police are unfair, discriminatory and create a double standard. We agree with the Commonwealth Court that appellant has waived the first issue and find issues two and three to be wholly without merit and not requiring explication.
Accordingly, the Board’s recommendation of dismissal is affirmed.
McDERMOTT, J., concurs in the result.
ROBERTS, J., files a concurring opinion joined by O’BRIEN, C.J., and HUTCHINSON, J.