Opinion
No. 1933 C.D. 2013
03-25-2015
Ronald Ladd, Appellant v. Borough of West Reading Civil Service Commission and Borough of West Reading
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Appellant, Ronald Ladd, appeals from the order of the Court of Common Pleas of Berks County, which affirmed the order of the Borough of West Reading Civil Service Commission terminating Appellant's employment as a police officer with the Borough of West Reading. We affirm.
Appellant was employed as a police officer with the Borough from May 16, 1994 until November 14, 2012. On August 31, 2012, following his return from sick leave, Appellant was assigned to the squad of Sergeant Rick Vetter. Appellant requested that Chief Edward Fabriziani transfer him to another squad because he did not wish to work with Officer Tom Hawn, who was also assigned to Vetter's squad. Fabriziani denied Appellant's request. On August 31, 2012, Appellant responded to a domestic dispute call as the back-up officer to the primary officer, Hawn. While responding to the call, Appellant and Hawn disagreed regarding the course of action to take. The female occupant of the residence had obtained a protection from abuse order (PFA) against the man whom she wanted to vacate the house. Hawn refused to arrest the man for violating the PFA because the female had invited the man into the residence, while Appellant insisted that Hawn was required to arrest the man. A heated argument between Appellant and Hawn ensued. Appellant, angered by Hawn's refusal to arrest the man, left the residence and returned to the police department to complete paperwork related to an earlier call.
Prior to his employment with the Borough, Appellant was employed as a police officer in various departments throughout Berks County since 1984. Additionally, Appellant served six years in the Army including a deployment to Thailand and 30 years in the National Guard as a military police officer including deployments during both Iraq wars.
Appellant completed his paperwork and then went to Fabriziani's office to talk to him. The discussion between Fabriziani and Appellant devolved into a shouting match and a physical altercation. Following the altercation, Fabriziani placed Appellant on leave pending disciplinary action. The Borough mayor, Shane J. Keller, placed Fabriziani on leave pending an investigation. The Borough conducted an investigation and on September 16, 2012, sent Appellant a Loudermill Notice, which informed him that Keller believed he had engaged in conduct unbecoming an officer in violation of Section 20 of the Police Civil Service Act, as amended, 53 P.S. § 53270, and that the Borough intended to terminate his employment. Reproduced Record (R.R.) at 353a. The Borough Council voted to terminate Appellant's employment on November 15, 2012.
Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985).
Act of June 5, 1941, P.L. 84, as amended, 53 P.S. §§ 53251-53277, repealed as to boroughs by The Borough Code, Act of July 10, 1947, P.L. 1621.
Appellant appealed his termination to the Commission. The Commission held three hearings at which several witnesses testified, evidence was entered into the record and legal argument was heard.
Appellant testified as follows. After completing the paperwork, he entered Fabriziani's office to talk about the domestic dispute call. Fabriziani informed Appellant that he had already discussed the call with Hawn and he was satisfied with Hawn's handling of the call. Fabriziani suddenly lunged out of his chair waved his finger in Appellant's face while screaming and spitting. Fabriziani continued to scream at Appellant demanding that he sit down. Fabriziani then pushed Appellant, who fell to the floor. The two men engaged in a shoving match during which Fabriziani's head struck a bookcase. At some point, Appellant closed the door to Fabriziani's office because he found the screaming embarrassing. Appellant was concerned for his welfare and was unaware of whether or not Fabriziani was armed. Appellant believed he was merely defending himself from an attack. Appellant suffered an injury to his hand and bruising on his knees and legs.
Fabriziani testified as follows. During the course of their conversation Appellant became angered and began yelling at him. Appellant closed the door to his office and approached the corner of the desk and informed Fabriziani that nobody disrespects him and that he was tired of Fabriziani pandering to Hawn. Fabriziani asked Appellant to sit down three times and Appellant refused the order each time. Appellant then slammed a clipboard down on Fabriziani's desk dislodging several items. Fabriziani told Appellant that if he did not sit down, he would be disciplined for disobeying a direct order. Appellant did not sit down, but rather approached Fabriziani, grabbed him by the side of the neck and punched him with his right hand directly below the left eye. Appellant continued to strike Fabriziani, who put his hand up to defend himself. Appellant slammed Fabriziani's face into a bookcase, breaking his glasses. Appellant slammed him into the bookcase twice more and then threw him on the desk and punched him in the neck, shoulders and back. Fabriziani yelled for his secretary and shoved Appellant back, but Appellant pinned him against a credenza. Fabriziani again shoved Appellant and then left his office, yelling for his secretary to get the borough manager and the officer on duty because he had been assaulted. When Fabriziani returned to his office, he ordered Appellant to get his duty weapon out, unload it and place it on the desk. Fabriziani's weapon was not on his person during the confrontation. Fabriziani suffered bruises, contusions, soreness, red marks and a bruised hand.
The borough manager, Richard J. Sichler, testified that he received a call from the police department secretary that he needed to meet with Fabriziani. Sichler found Fabriziani in the parking lot with Appellant. After Sichler joined Fabriziani and Appellant, Fabriziani informed Appellant that he was being placed on administrative leave pending disciplinary action. Sichler and Fabriziani then returned to Fabriziani's office where Sichler observed that papers and a clipboard were on the floor and the computer was knocked askew. Sichler also noted that Fabriziani was not wearing the glasses he always wore and that he was highly agitated.
The Commission affirmed Appellant's termination. The Commission found that Appellant was the aggressor because he initiated the physical altercation and caused the injuries sustained by Fabriziani. Commission's Findings of Facts Nos. 37 and 38. The Commission also found that after Sichler had arrived Appellant did not suggest that Fabriziani assaulted him or suggest that Fabriziani was the aggressor, and that he did not contradict Fabriziani's statement that Appellant had assaulted him. Id. at Nos. 49, 50 and 51.
Appellant appealed the Commission's decision to common pleas, which sustained the Commission's termination of Appellant. Common pleas determined that Appellant was terminated for conduct unbecoming an officer, which alone constitutes just cause for dismissal. Common pleas further determined that the Borough was not required to produce evidence that Appellant's conduct brought the department into disrepute because society does not tolerate assaults upon its police officers and therefore, such behavior is inherently disreputable. Common pleas rejected Appellant's argument that the Commission relied upon newspaper articles that were not of record, stating that the record contained sufficient evidence to support the Commission's decision and that even if the Commission relied upon the evidence outside the record, Appellant did not suffer any prejudice as a result of the Commission mentioning the newspaper article. Common pleas also held that the Commission did not err in excluding from evidence letters to the editor because the letters were not relevant. Common pleas determined that Appellant had failed to prove that he acted in self-defense. Finally, common pleas concluded that the Commission's decision was not against the weight of the evidence because even if Appellant acted in self-defense his other behavior including threats and insults also constituted conduct unbecoming an officer. This appeal followed.
A court's review of a municipal civil service commission is limited. Where a full and complete record is made of the proceedings before a municipal civil service commission, a reviewing court must affirm the adjudication unless it is not in accordance with law or a finding of fact of the commission necessary to support its adjudication is not supported by substantial evidence. Section 754 of the Administrative Agency Law, 2 Pa. C.S. § 754; Davis v. Civil Serv. Comm'n of Phila., 820 A.2d 874, 878 (Pa. Cmwlth. 2003). --------
Appellant raises five issues on appeal. Appellant argues that there is not substantial evidence to support the conclusion that he engaged in conduct unbecoming an officer because the Borough failed to produce evidence that his conduct brought the department into disrepute. Second, Appellant argues that the Borough failed to disprove his claim that he acted in self-defense. Third, Appellant contends that the Commission improperly relied upon evidence outside the record. Fourth, Appellant asserts that the Commission erred in excluding from the record letters to the editor as irrelevant. Finally, Appellant argues that the Commission's decision was against the weight of the evidence.
Appellant argues that the Borough failed to introduce direct evidence of the impact on morale or efficiency of the Department or evidence of the impact on the public's perception of the department. Appellant asserts that the Commission improperly concluded that just because an event occurred that conduct brought the department into disrepute. Appellant notes that the public made comments supportive of him at the Commission's hearing. R.R. at 248a, 296a-97a, 301a, and 303a.
In order to maintain a high degree of respect for the police, officers are held to a higher standard of conduct than other citizens. Feliciano v. Borough of Norristown, 758 A.2d 295, 297 (Pa. Cmwlth. 2000). Conduct unbecoming a police officer has been defined to include conduct that adversely affects the morale and efficiency of the police force or tends to destroy public respect for, and confidence in, the police force. Id. "It is indispensable to good government that a certain amount of discipline be maintained in the public service." Zerber Appeal, 156 A.2d 821, 825 (Pa. 1959).
This court has held that acts committed in private constitute conduct unbecoming a police officer. Pa. State Police v. Pa. State Troopers Ass'n (Betancourt), 633 A.2d 1278, 1300-01 (Pa. Cmwlth. 1993), Borough of Darby v. Coleman, 407 A.2d 468, 471 (Pa. Cmwlth. 1979), Faust v. Police Civ. Serv. Comm'n of the Borough of State College, 347 A.2d 765, 769 (Pa. Cmwlth. 1975). In Coleman, the chief of police, who had an extra-marital affair with another borough employee, was terminated for conduct unbecoming an officer. Coleman argued that the borough had failed to prove his conduct was unbecoming because he conducted the affair in private and because there was no testimony regarding any debilitating effect on the police department. This court rejected Coleman's arguments stating that conduct unbecoming an officer must "only be such as to offend publicly accepted standards of decency" and that adultery offends such public standards of decency. Coleman, 407 A.2d at 471 (internal quotations omitted). This court has also held that society does not countenance assaults upon police officers and that one police officer assaulting another constitutes conduct unbecoming an officer. See Civil Serv. Comm'n of the City of Phila. v. Wojtusik, 525 A.2d 1255, 1257 (Pa. Cmwlth. 1987) (stating that such conduct "could reflect poorly on the police department, affecting its morale and tend to destroy public respect and confidence in its operations").
As demonstrated by Coleman, direct evidence of the effect of behavior constituting conduct unbecoming an officer is not necessary to sustain an employee's termination where such behavior transgresses expected standards of behavior. Further, there is ample evidence in the record that Appellant engaged in a shouting match and physical altercation with his superior officer. Fabriziani testified that Appellant refused a direct order to sit down. The aftermath of confrontation between Fabriziani and Appellant was publicly witnessed by the department secretary, the borough manager and the emergency room employees, who treated Fabriziani. Appellant's verbal confrontation with Fabriziani violated the standards of good discipline necessary to the efficient operation of a police force and the physical altercation transgressed the heightened standard of behavior the public expects of police officers. Accordingly, we conclude that Appellant's behavior constituted conduct unbecoming an officer.
Appellant asserts that there is not substantial evidence to support a finding that he was not acting in self-defense. Appellant argues that his conduct was consistent with Pennsylvania's law of self-defense as stated in Section 505(a) of the Crimes Code, as amended, 18 Pa. C.S. § 505(a), and as elaborated upon in the Pennsylvania Standard Criminal Jury Instruction 9.505. Section 505(a) provides:
Use of force justifiable for protection of the person. --The use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.Appellant contends that based on his perception of Fabriziani's actions he was entitled to defend himself.
A reviewing court will examine, but not weigh, the evidence since the commission, as fact finding tribunal, is in a better position to discover the facts based upon the testimony and the demeanor of witnesses. Moorehead v. Civil Serv. Comm'n, 769 A.2d 1233, 1238 (Pa. Cmwlth. 2001). This Court may not substitute its judgment for that of the commission. Id. The Commission heard the testimony of both witnesses and observed their demeanors and concluded that Fabriziani was more credible than Appellant. Commission's Opinion at 9. The Commission found that Appellant shut the door to the office. Commission's Finding of Fact No. 31. Although there was conflicting evidence as to who started the shouting match and the physical altercation, the Commission specifically found that Appellant was the aggressor. Commission's Finding of Fact No. 38. As the aggressor, Appellant is not entitled to claim self-defense. Further, at any time during the altercation, Appellant could have simply walked away, which he did not do. We conclude that the record supports a finding that Appellant was not acting in self-defense.
Appellant argues that the Commission's decision should be reversed because it improperly relied upon unidentified newspaper articles that were not of record. In its one paragraph under the title "Conclusions of Law," the Commission stated:
Ladd initiated the physical altercation with Fabriziani ... and, by reason of the publication of such occurrence in the Reading Eagle and other sources, such publication had a tendency to destroy public respect for municipal employees and confidence in the operation of municipal services.Commission's Opinion at 10. Appellant asserts that the alleged articles were never introduced into evidence, never identified and never subject to cross-examination. Appellant contends that he was prejudiced by Commission's reliance on these articles because they are the only evidence relied upon by Commission relating to the public perception element of the conduct unbecoming an officer charge.
While it is improper for a tribunal to rely on matters outside the record, the Commission's mention of the articles in the Reading Eagle is not a sufficient basis to overturn its decision. As stated above, whether the unbecoming conduct is publicly known is not dispositive to a charge of conduct unbecoming an officer. There was ample evidence of record demonstrating that Appellant engaged in conduct that transgressed the standards of behavior expected of a police officer. In its opinion, the Commission thoroughly considered, weighed and discussed the evidence before concluding that Appellant was the aggressor and that his behavior constituted conduct unbecoming an officer.
Appellant further contends that the Commission erred as a matter of law by excluding from the record letters to the editor written in support of him. Appellant argues that the letters to the editor are relevant because it made a fact at issue, how the community responded to Appellant's actions, more or less probable.
Relevance is defined as evidence having "any tendency to make a fact more or less probable than it would be without the evidence; and the fact is of consequence in determining the action." Rule of Evidence 401(a), (b) of the Pennsylvania Rules of Evidence, Pa.R.E. 401(a), (b); Commonwealth v. Walker, 92 A.3d 766, 791 (Pa. 2014). Whether or not some segment of the public supported Appellant's actions is not relevant to whether his behavior constituted conduct unbecoming an officer. Appellant's shouting match with Fabriziani cannot be characterized as consistent with good discipline, and his role as aggressor in the physical altercation is inconsistent with society's expectation that police officers refrain from assaulting one another. The Commission did not abuse its discretion in excluding the letters to the editor from the record.
Finally, Appellant asserts that the Commission's decision was against the weight of the evidence because during the course of the Borough's investigation and during the Commission's hearings, Fabriziani allegedly gave conflicting testimony regarding his interactions with Appellant leading up to, during and after the altercation.
Appellant's argument is meritless. Appellant is merely attacking the weight and credibility determinations made by the Commission. The Commission is solely responsible for determining the weight of evidence and the credibility of witnesses. Wei v. State Civil Serv. Comm'n (Dep't of Health), 961 A.2d 254, 258 (Pa. Cmwlth. 2008); Moorehead, 769 A.2d at 1238. The Commission had access to the Borough's investigation and heard Fabriziani's testimony first hand and ultimately determined that Fabriziani was the more credible of the two. Thus, the Commission performed its assigned duty to weigh evidence and determine credibility in order to reach a conclusion.
For all of the foregoing reasons, we affirm.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 25th day of March, 2015, the order of the Court of Common Pleas of Berks County is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge