Andras v. Wyalusing Borough

• Decision Date: 24 April 2002
• Citation: 796 A.2d 1047
• Parties: George ANDRAS, Appellant, v. WYALUSING BOROUGH and Wyalusing Borough Council.
• Court: Pennsylvania Commonwealth Court

796 A.2d 1047

George ANDRAS, Appellant, v. WYALUSING BOROUGH and Wyalusing Borough Council.

Commonwealth Court of Pennsylvania.

Submitted on Briefs January 11, 2002.

Decided April 24, 2002.

Ray DePaola, Towanda, for appellant.

Jonathan P. Foster, Athens, for appellees.

BEFORE: COLINS, President Judge, COHN, J., and MIRARCHI, JR., Senior Judge.

OPINION BY Senior Judge MIRARCHI.

George Andras (Andras) appeals from an order of the Court of Common Pleas of Bradford County that affirmed the decision of the Wyalusing Borough Council (Borough Council) to terminate his employment. The issues on appeal are: (1) whether the Borough Council's decision is supported by substantial evidence; and (2) whether the termination imposed by the Borough Council may be properly modified on appeal to a less severe sanction. We affirm.

Andras was employed by the Wyalusing Borough (Borough) as a police officer since 1979 in its police department which had a police force of less than three officers. The circumstances leading to the termination of Andras' employment, as found by the Borough Council, are as follows. Andras was the Borough police chief during the most of the period in question. Further, he was the only full-time police officer on January 7, 1999 when the Mayor of the Borough met with him to discuss the charges of his misconduct, including (1) mismanaging the Borough fund; (2) providing inaccurate and misleading information to the news media; (3) failing to investigate accidents and file reports; and (4) removing and destroying police records.

In a subsequent letter sent to Andras, the Mayor included an additional charge of refusing to answer the Mayor's questions at the January 7, 1999 meeting. Noting previous verbal and written disciplinary actions taken against Andras, the Mayor informed Andras that she would recommend termination of Andras' employment to the Borough Council. On February 1, 1999, the Borough Council accepted the Mayor's recommendation and terminated Andras' employment. Andras challenged the termination, and the Borough Council held a hearing, at which Andras, the Mayor, the Borough Secretary and the chief County detective testified. The Borough also presented various documentary evidence to support the charges against Andras.

As to the charge of mismanaging the Borough fund, the Borough presented the following evidence. The Borough had the established policy, under which the Borough forwards all requests for copies of accident reports along with accompanying service fee checks to the police department. The police officer, who has investigated those accidents, must then process the requests, photocopy the accompanying checks and return the original checks back to the Borough for deposit in the Borough's general fund.

The Borough Secretary testified that for the past three years prior to the termination of his employment, Andras failed to return to the Borough any checks which were forwarded to him and were related to the requests for the reports of the accidents he had investigated. The two part-time officers returned the checks to the Borough after processing the requests, as required by the Borough policy. The documents presented by the Borough showed that out of the seventeen checks sent by the Metropolitan Reporting Bureau to the Borough from January 1, 1995 to December 1, 1998 to obtain copies of accident reports, only four checks were deposited. Those four checks were the ones that were returned by the part-time police officer. Andras does not dispute that at least some of those seventeen checks were related to the requests for reports of the accidents he had investigated.

The Borough Secretary further testified that it was difficult to keep track of the number of citations issued by Andras and the payments made on the citations due to his failure to maintain the record. Andras admitted that he did not submit to the Borough the white copies of the citations he issued. The chief County detective, who investigated the police department's handling of the Borough fund, testified that it was impossible to prove any wrongdoing because the record was not properly maintained in the police department.

Accepting the testimony and the documentary evidence presented by the Borough as credible and rejecting Andras' testimony, the Borough Council found, inter alia, that Andras failed to properly maintain the record of his activities and mismanaged the Borough fund received in the course of his official business, in violation of the established Borough policy; the long history of the disciplinary actions taken against him demonstrated his unwillingness to act properly in a professional manner; and the Mayor's efforts to rehabilitate him and avoid taking a further disciplinary action were unsuccessful. Concluding that all the charges against Andras, except the charge of failing to investigate accidents and file reports, were supported by the evidence, the Borough Council sustained the termination of Andras' employment and denied his appeal. On appeal, the trial court affirmed the Borough Council's decision, concluding that although the record only supported the charge of mismanaging the Borough fund and failing to maintain the proper record of his activities, such misconduct alone justified the termination. After the trial court denied his motion for reconsideration, Andras appealed to this Court.

Where, as here, a complete record was developed before the local agency, the court must affirm the agency's decision unless it determines that constitutional rights were violated, that an error of law was committed, that the procedure before the agency was contrary to statute, or that necessary factual findings are not supported by substantial evidence. Section 754(b) of the Local Agency Law, 2 Pa.C.S. § 754(b); Sparacino v. Zoning Board of Adjustment, 728 A.2d 445 (Pa.Cmwlth. 1999), appeal denied, 565 Pa. 680, 775 A.2d 811 (2001).

Andras contends that the Borough Council's finding that he failed to properly maintain the record and mismanaged the Borough fund is not supported by substantial evidence.

In making such finding, the Borough Council accepted as credible the testimony and the documentary evidence presented by the Borough, which established that while he was the police chief and the only full-time police officer in the police department, Andras failed to comply with the Borough policy requiring the officers to return the checks to the Borough after processing the requests for accident reports and failed to properly maintain the record of his official activities.

As the ultimate factfinder in this proceeding, the Borough Council had the prerogative to determine the credibility of the witnesses and the weight to be given to the evidence. Tandon v. State Board of Medicine, 705 A.2d 1338 (Pa.Cmwlth.1997), appeal denied, 556 Pa. 682, 727 A.2d 134 (1998); Richter v. Civil Service Commission of the City of Philadelphia, 35 Pa. Cmwlth. 310, 387 A.2d 131 (1978). Since the Borough Council's finding regarding the charge of mismanaging the Borough fund and failing to maintain the proper record is...