Opinion
No. 612 C.D. 2011
07-05-2012
Timothy Hannigan, Petitioner v. Municipal Police Officers' Education and Training Commission, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE J. WESLEY OLER, JR., Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Timothy Hannigan, a police officer employed by the Borough of Darby, Delaware County, petitions for review of the final order of the Municipal Police Officers' Education and Training Commission (Commission) revoking his police officer's certification for cheating on the annual mandatory in-service training course examinations.
Hannigan argues that the Commission exceeded its authority under Section 2164 of the Act, commonly referred to as the Municipal Police Education and Training Act, as amended, 53 Pa. C.S. § 2164, in revoking his certification. He further argues that 37 Pa. Code §§ 203.14(a)(9) and 203.54(a), permitting a revocation of certification for cheating, are unreasonable because they fail to allow a less severe punishment and fail to provide for a recertification of a decertified police officer. Asserting that the revocation constitutes a de facto termination of his employment, Hannigan finally argues that the Commission usurped the Borough civil service commission's authority to terminate his employment. We affirm.
This appeal is related to twelve appeals docketed at Nos. 599-610 C.D. 2011 and two appeals docketed at Nos. 641 and 642 C.D. 2011. This Court permitted the Commission to file a single brief for all of the related appeals. To the extent that Hannigan raises the same legal issues, the Court's discussion in Barbour v. Municipal Police Officers' Education and Training Commission, ___ A.3d ___ (Pa. Cmwlth. No. 599-610 C.D. 2011, filed July 5, 2012), and Freeman v. Municipal Police Officers' Education and Training Commission (Pa. Cmwlth. No. 641 and 642 C.D. 2011, filed July 5, 2012), a memorandum opinion, equally applies to this appeal.
I.
The Commission is responsible for establishing a municipal police officers' education and training program, which is administered by the Pennsylvania State Police. Section 2161(a) of the Act, 53 Pa. C.S. § 2161(a). The Commission has, inter alia, the following powers and duties:
The Commission is composed of twenty members, including the Commissioner of the Pennsylvania State Police, the Secretary of Community and Economic Development, the Attorney General, and the appointees of the Governor, the President pro tempore of the Senate and the Speaker of the House of Representatives. Section 2163(a) of the Act, as amended, 53 Pa. C.S. § 2163(a).
(1) To establish and administer the minimum courses of study for basic and in-service training for police officers and to revoke an officer's certification when an officer fails to comply with the basic and in-service training requirements or is convicted of a criminal offense or the commission determines that the officer is physically or mentally unfit to perform the duties of his office.
....Section 2164(1), (6) and (14) of the Act (emphasis and footnote added).
(6) To require every police officer to attend a minimum number of hours of in-service training as provided for by regulation ....
....
(14) To make such rules and regulations and to perform such other duties as may be reasonably necessary or appropriate to implement the education and training program for police officers.
The term "certification" is defined as "[t]he assignment of a certification number to a police officer after successful completion of a mandatory basic training course ... and successful completion of mandatory in-service training." Section 2162 of the Act, as amended, 53 Pa. C.S. § 2162. A certification is issued initially for two years and can be renewed every two years thereafter only to officers who have satisfied the mandatory in-service training requirements. Id.; 37 Pa. Code § 203.13(c). The Commission's authority to revoke a police officer's certification was granted by the 1988 amendment to the Act. Saccol v. Mun. Police Officers' Educ. & Training Comm'n, 613 A.2d 122 (Pa. Cmwlth. 1992).
The Commission's regulations require municipal police officers to comply with (1) "[c]ontinuous" in-service requirements, consisting of annual qualifications on firearms and other weapons and maintenance of a first aid and CPR certification, and (2) "[a]cademic" in-service requirements, consisting of at least 12 hours of annual academic training requirements. 37 Pa. Code § 203.52(b)(1) and (2). Successful completion of academic in-service requirements is determined only by examinations provided by the Commission and administered by certified course instructors at the end of each training course. 37 Pa. Code § 203.52(c)(6). A police officer who fails to receive a minimum passing score set by the Commission is given an opportunity to review the course and take an oral reexamination with different questions. 37 Pa. Code § 203.52(c)(7). An individual who is currently employed as a police officer and fails both the initial examination and the reexamination is permitted to participate in another course offering. Id.
The Commission also adopted a policy on cheating in 37 Pa. Code § 203.54(a), which provides:
The contents of all examinations are confidential. An individual may not cheat or tamper in any manner with an official examination either conducted or sponsored by the Commission by obtaining, furnishing, accepting, or attempting to obtain, furnish or accept answers or questions to examinations, or portions thereof. Individuals may not copy, photograph or otherwise remove examination contents; nor may they use any misrepresentation or dishonest method while preparing, administering or participating in examinations. Unauthorized possession of a test, examination, quiz or a [sic] questions, answers or answer keys relating to a test, examination or quiz shall constitute cheating. An individual violating this section shall be barred from further participation in any Commission-required training and ineligible for certification. Individuals will receive notice and have an opportunity to be heard under Subchapter G (relating to notice and hearings). [Emphasis added.]The Commission "maintains the right to revoke certification after notice and an opportunity to be heard" for "[f]ailure to successfully complete annual mandatory in-service training" and "[c]heating." 37 Pa. Code § 203.14(a)(4) and (9).
II.
In separate letters dated June 30, 2009, the Commission's executive director, John M. Gallaher, informed Hannigan and 14 other police officers involved in the related appeals that he was proposing to revoke their police officers' certifications for cause and that they had a right to request a hearing within 15 days. Gallaher stated that he possessed facts which led him to believe that they (1) failed to successfully complete the 2009 academic in-service training requirements and (2) cheated during the academic training course examinations by possessing and/or furnishing answers to the examinations. Pursuant to 37 Pa. Code § 203.103(b), the Commission thereafter appointed a hearing officer, who held a hearing on the proposed revocation of Hannigan's certification on November 4, 2009 and separate hearings for the other police officers in November and December 2009. After the hearings, the hearing officer granted the Commission's motion to adopt a master record, consisting of the testimony of the Commission's witnesses presented at the November 2, 2009 hearing held for Officer Michael K. Irey, the petitioner in No. 610 C.D. 2011, and its exhibits M-1 through M-31, which would be considered in all of the 15 related cases. The hearing officer also permitted the Commission to supplement the record to include copies of Gallaher's June 30, 2009 letters (Exhibits M-32 through M-46).
The evidence presented by the Commission revealed the following circumstances leading to the cheating allegations against Hannigan and the other officers. The Commission prepares three versions of examinations for each academic in-service training course: (1) Test 1, also referred to and interchangeable with Test A, to be administered after each training course; (2) Test 2 or Test B, a retest for officers who fail Test 1; and (3) Test 3 or Test C, to be administered to officers who fail both Test 1 and Test 2 and must re-take the course. Before scheduled examinations, the Commission sends twenty-one police academies a compact disc containing three versions of tests and answer keys. The police academy directors then reproduce hard copies of the tests and answer keys from the compact disc. Each test consists of ten multiple-choice questions with a possible answer of A, B, C or D for each question. Jamie Vaughn, an office assistant for the police academy at the Delaware County Community College (Delaware County police academy), testified that she usually labeled the three versions of tests as Test 1, 2 and 3, or Test A, B and C, depending on how the Commission labeled them, inserted page numbers on top of each test page and gave course instructors approximately 35 copies of Test 1 and 10 copies of Test 2 for each training course examination.
Before administering an examination, a course instructor must inform the class of the Commission's cheating policy stated in 37 Pa. Code § 203.54(a), as required by 37 Pa. Code § 203.54(c). The cheating policy is also printed verbatim on top of the answer sheet above an officer's signature line. The officers sign and print their names and fill in the name of a police academy and a test version, as directed by the instructors: Test 1 or Test A for an initial test and Test 2 or Test B for a retest. The officers also fill in the class ID, the session ID, the course title and the course/test date. After completion of the tests, the officers turn in the tests and the answer sheets separately. The tests used by the officers cannot be identified because they are not attached to the answer sheets and do not contain any information linking the tests to test takers.
In 2009, Hannigan and other officers were required to take four three-hour annual academic in-service training courses. In late December 2008, the Commission shipped by UPS training course test materials for examinations scheduled for February 25 and 26, 2009 to the police academies. On February 5, 2009, Officer Sean P. Gallagher of the Oxford Borough police department, the petitioner in No. 642 C.D. 2011, sent Officers Brian Dever and Joseph Devlin of the same police department an e-mail with the subject line, "FW: Answers for Act 180 if you need them." The e-mail then listed answers to the four 2009 academic training course examinations. Exhibits M-12 and M-13; Commission's Master Record (M.R.) at 156-57. Dever and Devlin forwarded Gallagher's e-mail to their police chief, who in turn reported the e-mail to the director of the Delaware County police academy, William Davis. Davis then notified the Commission's administrative officer, Beverly Young, that the Test 1 answers had been disseminated via an e-mail.
On February 12, 2009, Young and the Commission's director of training, Rudy M. Grubesky, instructed police officers' education training specialists, Timothy Ebersole and Kimberly Shaw, to investigate the cheating allegations. On February 24, 2009, Grubesky sent the police academy directors an e-mail, which stated:
Due to a recent cheating incident, the examinations for Test 1 (Test A) for all four 2009 Mandatory In-Service Training Program courses have been compromised. Please discontinue using Test 1 (A) as soon as practicable. I know there may be some logistical issues and hardship in making this change, but we need to ensure the integrity of the examinations. Please keep monitoring test security at your school. The investigation is ongoing.Exhibit M-4; M.R. at 147 (emphasis in original). Before receiving Grubesky's e-mail, the Delaware County police academy director had already instructed his secretary, Vaughn, to destroy the Test 1 materials and give the course instructors the Test 2 and Test 3 versions instead, based on his conversation with Young. Vaughn shredded all of the Test 1 materials, as directed, which was later confirmed by the director.
On February 25, 2009, the Commission's course instructor, John W. Ryan, was scheduled to teach two three-hour courses at the Delaware County police academy: Legal Updates in the morning and Officer Safety Awareness in the afternoon. His usual procedure was to administer an examination for the morning class before lunch. On that date, however, Ryan realized that he did not have enough test materials for the Legal Updates course. Because he could not quickly obtain additional test materials, he released the officers for a lunch break. In handing out the Legal Updates tests to the class after lunch, he noticed that they were Test 2 or Test B versions. During the subsequent Officer Safety Awareness test, someone in the class asked him to verify the test number. After responding that it was Test 2 or Test B, he checked to make sure that he was handing out Test 2 versions. In the classroom, only he had a copy of the Test 1 version for the Officer Safety Awareness course, which he had used to take the test himself to prepare for the class. In the eighteen years that he had been a course instructor, it was the first time that he gave the class Test 2 version for an initial test.
In grading the Office Safety Awareness test, Ryan realized that he had never had so many officers who failed the test. He checked again to make sure that he had the same test booklets. He took the Officer Safety Awareness tests and answer sheets home and went over the officers' answers again, making slash marks on correct answers whenever the officers placed wrong answers. After reviewing the answers of the officers who failed to receive a passing grade of 70%, he learned that they seemed to have the same wrong answers and that most of them would have received 90% or 100% on the Test 1 version. The next day, he informed the Delaware County police academy director of his findings and administered the Test 3 versions to the officers who failed the initial test.
The Commission's investigators, Ebersole and Shaw, analyzed Hannigan's answers by comparing them with the correct answers to the compromised Test 1 version. Hannigan scored 40% on the Officer Safety Awareness test but would have received 90% on the Test 1 version. Exhibits M-2 and M-18; M.R. at 136 and 162. The investigators initially interviewed Hannigan on March 31, 2009 and scheduled another interview for May 14, 2009 because of discrepancies in his statements during the first interview.
At the second interview, Hannigan volunteered to make a statement. He stated that sometime in January 2009, he found a paper containing answers to the tests inside his locker in the Borough of Darby police department. He did not know who placed the paper in the locker. He stored those test answers in his cellphone and texted them to other officers. He admitted that he possessed the answers to the Test 1 version of the Legal Updates test and wrote them down on the answer sheet. After reading the questions, he realized that those answers did not correspond to the questions. He then erased them and put what he believed to be correct answers on the answer sheet. He also admitted that he possessed the answers to the Test 1 version of the Officer Safety Awareness test. He was not sure if he used them during the test. He stated that he had destroyed the paper found in the locker and deleted the text-messages in his cellphone. He was told by Ebersole that the Commission's executive director would be informed of his cooperation with the investigation. The parties stipulated that if called to testify, Officer David M. Cuddhy of the Borough of Darby police department, the petitioner in No. 605 C.D. 2011, would testify that he received a text-message with the test answers from Hannigan.
When asked at the hearing why he made the admission to the investigators during the second interview, Hannigan replied:
Because it was haunting me day in, day out since it happened, that I had made a bad decision, made a lapse in judgment and I had to get it off my chest because I couldn't go on, I mean, wondering what's going to happen the next day. I just had to get it out there basically. He [Ebersole] gave me the chance and I hopped on it.November 4, 2009 Hearing, Notes of Testimony (N.T.) at 38-39; Reproduced Record (R.R.) at 32a. He further testified that the mandatory training had always seemed "casual" to him and that implicating his fellow officers was the most difficult thing. Id. at 56; R.R. at 46a. On cross-examination, he admitted to possessing answers to the training course tests on other occasions. The Borough of Darby's police chief testified that Hannigan's decertification would create difficulties to his busy police department.
In a proposed decision and recommendation dated November 2, 2010, the hearing officer accepted the testimony of the Commission's witnesses as credible and found that the compromised Test 1 versions were shredded before the February 25 examinations and that the course instructor distributed the Test 2 versions of the Officer Safety Awareness test to the class. The hearing officer concluded that the Commission failed to prove Hannigan's failure to successfully complete the 2009 mandatory in-service training requirements. Further concluding that the Commission proved Hannigan's cheating on the examinations, she recommended a revocation of his certification. She stated that the broadly written cheating policy in 37 Pa. Code § 203.54(a) did not provide for any exception to a revocation for cheating based on the nature of a cheating offense, the officer's prior record or mitigating circumstances. She further stated that Hannigan's cavalier attitude toward the academic training requirements and his admission to possessing test answers on prior occasions would pose a problem for the Commission's exercise of discretion in imposing a penalty, even if it were permitted to do so. She suggested that if he could apply for a recertification in the future, his mitigating circumstances might be considered.
On November 4, 2010, the Commission notified Hannigan's counsel that exceptions to the hearing officer's proposed decision and recommendation must be filed no later than December 8, 2010. In a brief on exceptions, Hannigan argued, inter alia, that the regulations were defective because they failed to provide gradation of a penalty for cheating, failed to permit consideration of mitigating factors and interests of his employer and the community, and failed to provide for a recertification procedure. Hannigan further argued that the revocation of his certification constituted a de facto termination of his employment and that the Commission usurped the Borough civil service commission's authority to terminate his employment. Counsel for the Pennsylvania State Police filed a response, urging the Commission to adopt the hearing officer's proposed decision and recommendation.
Exceptions to a hearing officer's proposed decision must be filed "in a brief (designated 'brief on exceptions')" with the agency head within 30 days after the service of the proposed decision or such other time fixed by the agency head. 1 Pa. Code § 35.211. A brief opposing exceptions may be filed within 20 days after the time limit for filing a brief on exceptions or such other time as may be fixed by the agency head. Id. The hearing officer's proposed decision "will not be deemed a final order if a brief on exceptions is not filed." 37 Pa. Code § 203.103(e).
By a final order dated March 10, 2011, the Commission revoked Hannigan's certification, adopting verbatim the hearing officer's proposed findings of fact and conclusions of law, including her conclusion that the evidence did not support the proposed revocation for failure to successfully complete the 2009 in-service training program. Hannigan's appeal to this Court followed.
An administrative agency's decision must be affirmed unless it violated a constitutional right or was not in accordance with law, or any necessary findings of fact are not supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; D'Alessandro v. Pa. State Police, 594 Pa. 500, 937 A.2d 404 (2007).
III.
While conceding that he "made a lapse in judgment" by cheating on the annual in-service training course examinations, Hannigan first argues that the Commission exceeded its authority under Section 2164 of the Act by adopting the cheating policy in 37 Pa. Code § 203.54(a) and maintaining the right to revoke a certification for cheating in 37 Pa. Code § 203.14(a)(9). Hannigan's Brief at 10.
Hannigan further argues that the regulations violate his constitutional rights to due process and equal protection. He claims that the cheating policy constitutes an unreasonable exercise of police power and imposes an unduly burdensome restriction on his property right to employment. Before the hearing officer and the Commission, however, he did not raise any constitutional issue. In his brief on exceptions filed with the Commission, he asserted only that "[u]nless the Commission properly considers the mitigating circumstances, a municipal police officer is deprived of his property right in his position, which right is protected by Civil Service laws and regulations." Hannigan's Brief on Exceptions at 11 (emphasis added); R.R. at 177a. To preserve an issue, a party must raise the issue at every stage of the proceeding. Nabisco Brands, Inc. v. Workers' Comp. Appeal Bd. (Tropello), 763 A.2d 555 (Pa. Cmwlth. 2000). Where, as here, a party fails to raise an issue, even one of constitutional dimension, in an agency proceeding, the issue is waived and cannot be raised on appeal. Pa. R.A.P. 1551(a); K.J. v. Pa. Dep't of Pub. Welfare, 767 A.2d 609 (Pa. Cmwlth. 2001). This includes a challenge to the validity of a regulation (as opposed to a challenge to the facial validity of a statute). Moran v. Unemployment Comp. Bd. of Review, 973 A.2d 1024 (Pa. Cmwlth. 2009); DARLINGTON, PENNSYLVANIA APPELLATE PRACTICE (2011-2012) § 1551:4.
The Act delegates to the Commission the broad legislative authority to "make such rules and regulations ... as may be reasonably necessary or appropriate to implement the education and training program for police officers." Section 2164(14). Where, as here, the statute delegates the authority to adopt rules and regulations necessary to administer a statute, an agency's regulations adopted pursuant to such authority "establish new law, rights or duties." Borough of Pottstown v. Pa. Mun. Ret. Bd., 551 Pa. 605, 609, 712 A.2d 741, 743 (1998). The legislative regulations have the force of law and are binding on reviewing courts as part of a statute, as long as they are (1) within the granted power, (2) adopted in compliance with proper procedures and (3) reasonable. Tire Jockey Serv. Inc. v. Dep't of Envtl. Prot., 591 Pa. 73, 915 A.2d 1165 (2007). Hannigan does not dispute that the Commission's regulations were adopted in compliance with the procedural requirements.
The agency's legislative regulations must be distinguished from regulations adopted pursuant to its interpretative rulemaking powers. Bayada Nurses, Inc. v. Dep't of Labor & Indus., 958 A.2d 1050 (Pa. Cmwlth. 2008), aff'd, 607 Pa. 527, 8 A.3d 866 (2010). Unlike the former, the interpretative regulations merely construe a statute and do not expand upon its terms; they are deferred to by the court only if they are reasonable and genuinely track the meaning of the underlying statute. Id.
To establish that an agency has exceeded its legislative rule-making powers, the regulations must appear to be so entirely at odds with fundamental principles as to be the expression of a whim, rather than an exercise of judgment. Bayada Nurses, Inc. v. Dep't of Labor & Indus., 958 A.2d 1050 (Pa. Cmwlth. 2008), aff'd, 607 Pa. 527, 8 A.3d 866 (2010). Under the Act, the Commission is responsible for establishing and administering the municipal police officers' academic training program and setting a minimum number of hours for their in-service training. Sections 2161(a) and 2164(1) and (6). Pursuant to its broad legislative powers granted by the Act, the Commission determined that "[o]nly examinations provided by the Commission shall be used to determine successful completion of academic requirements for [the training] courses." 37 Pa. Code § 203.52(c)(6). To implement the training course examinations, the Commission prohibits individuals from, inter alia, obtaining, furnishing or accepting answers to the examinations. 37 Pa. Code § 203.54(a). To enforce this policy, the Commission bars individuals cheating on the examinations from further participating in the required training and makes them ineligible for certification and subject to a possible revocation of certification. 37 Pa. Code §§ 203.54(a) and 203.14(a)(9). These provisions of the regulations are well within the Commission's broad legislative rulemaking powers to implement the education and training program.
In evaluating the reasonableness of the regulations, "appellate courts accord deference to agencies and reverse agency determinations only if they were made in bad faith or if they constituted a manifest or flagrant abuse of discretion or a purely arbitrary execution of the agency's duties or functions." Rohrbaugh v. Pa. Pub. Util. Comm'n, 556 Pa. 199, 208, 727 A.2d 1080, 1085 (1999). The regulations adopted pursuant to the legislative rulemaking powers enjoy a general presumption of reasonableness. Borough of Pottstown.
This Court has consistently held law enforcement officers to high standards of conduct. McFadden v. Pa. State Police, 540 A.2d 1009 (Pa. Cmwlth. 1988). As this Court stated in Cerceo v. Borough of Darby, 281 A.2d 251, 255 (Pa. Cmwlth. 1971):
The police officer[ ] is expected to conduct himself lawfully and properly to bring honor and respect to the law which he is sworn and duty-bound to uphold. He who fails to so comport brings upon the law grave shadows of public distrust. We demand from our law enforcement officers, and properly so, adherence to demanding standards which are higher than those applied to many other professions. It is a standard which demands more than a forbearance from overt and indictable illegal conduct. It demands that in both an officer's private and official lives he do nothing to bring dishonor upon his noble calling and in no way contribute to a weakening of the public confidence and trust of which he is a repository.In adopting the cheating policy, the Commission determined that police officers who cheat on training course examinations commit a serious breach of the high standards of conduct and should not remain certified. The Commission's determination is consistent with its objectives of maintaining the integrity of police forces and the public confidence and trust. The Commission's cheating policy is neither arbitrary nor made in bad faith.
The fact that the regulations do not provide for a less severe punishment for cheating does not render the regulations unreasonable. In reviewing the regulations, "[i]t is not our function to decide what we would have done under the circumstances if we had been" in the Commission's position. Appeal of Zimmett, 367 A.2d 382, 383 (Pa. Cmwlth. 1977) (emphasis in original). A court "is not at liberty to substitute its own discretion for that of administrative officers who have kept within the bounds of their administrative powers." Rohrbaugh, 556 Pa. at 208, 727 A.2d at 1085. Consequently, we may not interfere with the Commission's determination of an appropriate punishment for violating its policy. See Miller v. City of York, 415 A.2d 1280 (Pa. Cmwlth. 1980) (holding that the extent of punishments imposed upon a police officer who violated the police regulations is for the city council to decide and may not be interfered with by the court, absent a flagrant abuse of discretion). See also McFadden (holding that the Pennsylvania State Police did not abuse its discretion in terminating a state police officer's employment for illegal drug use without considering mitigating circumstances).
A police officer's certification may be revoked for conviction of "a disqualifying criminal offense," i.e., "[a] criminal offense for which more than 1 year in prison can be imposed as punishment." 37 Pa. Code §§ 203.14(a)(6) and 203.1. Hannigan argues that the regulations violate an officer's right to equal protection by authorizing a revocation of certification for cheating, while allowing an officer who has been convicted of a misdemeanor of the third degree to remain certified. A person convicted of a misdemeanor of the third degree may be sentenced to not more than one year in imprisonment. Section 1104(3) of the Crimes Code, 18 Pa. C.S. § 1104(3). As we have already concluded, Hannigan has waived his argument that the regulations violated his constitutional rights to due process and equal protection. Suffice to note that "[t]he constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective." Adler v. Montefiore Hosp. Ass'n of W. Pa., 453 Pa. 60, 76, 311 A.2d 634, 643 (1974). Whether the classification is the best means to achieve the desired result is a matter left to the legislature, not to the courts. Khan v. State Bd. of Auctioneer Exam'rs, 577 Pa. 166, 842 A.2d 936 (2004). The punishment imposed by the regulations for cheating is directly related to the Commission's objectives of holding police officers to the high standards of conduct.
IV.
Hannigan next argues that the Commission effectively terminated his employment by permanently revoking his police officer's certification, thereby usurping the authority of the Borough civil service commission under The Borough Code, Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. §§ 45101 - 48501, to remove a police officer from the police force. Section 1171 of The Borough Code, 53 P.S. §§ 46171, provides that "[n]o person shall hereafter be suspended, removed or reduced in rank as a paid employe in any police force ..., except in accordance with the provisions of this subdivision [Subdivision (j) (civil service for police and firemen), 53 P.S. §§ 46171 - 46195]." The Borough Code protects police officers from political and personal reprisal. Borough of Pitcairn v. Westwood, 848 A.2d 158 (Pa. Cmwlth. 2004).
Section 1190 of The Borough Code, 53 P.S. § 46190, provides:
No person employed in any police or fire force of any borough shall be suspended, removed or reduced in rank except for the following reasons:
(1) Physical or mental disability affecting his ability to continue in service ....
(2) Neglect or violation of any official duty.
(3) Violation of any law which provided that such violation constitutes a misdemeanor or felony.
(4) Inefficiency, neglect, intemperance, immorality, disobedience of orders, or conduct unbecoming an officer.
(5) Intoxication while on duty.
(6) Engaging or participating in conducting of any political or election campaign otherwise than to exercise his own right of suffrage.
There is no conflict between the Commission's authority to decertify a police officer and the borough civil service commission's authority to remove a police officer from the police force. A revocation of certification and a disciplinary action taken by the civil service commission are subject to separate due process hearings under the respective statutes. The Commission did not terminate Hannigan's employment in this proceeding. Although his decertification may eventually lead to a separate personnel action, the Commission did not usurp the civil service commission's authority.
Hannigan also complains that he did not have an opportunity to directly address the Commission and that the Commission did not independently review the evidence. The Commission reviews the hearing officer's "recommendation, findings of fact and conclusions of law, and by a majority vote issue[s] a final order." 37 Pa. Code § 203.103(c). Hannigan did not file a motion to present oral argument with the Commission, which must have been filed within the time limit for filing briefs opposing exceptions. 1 Pa. Code § 35.214. The fact that the Commission did not rule on the exceptions before issuing the final order does not establish that it did not consider the exceptions. --------
Accordingly, we affirm the Commission's final order.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 5th day of July, 2012, the order of the Municipal Police Officers' Education and Training Commission in the above-captioned matter is AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge