Fabio v. Civil Service Commission of City of Philadelphia

• Decision Date: 30 April 1980
• Parties: , 9 A.L.R.4th 600 Nicholas FABIO, Appellant, v. CIVIL SERVICE COMMISSION OF the CITY OF PHILADELPHIA.
• Court: Pennsylvania Supreme Court

Page 82

414 A.2d 82

489 Pa. 309, 9 A.L.R.4th 600

Nicholas FABIO, Appellant, v. CIVIL SERVICE COMMISSION OF the CITY OF PHILADELPHIA.

Supreme Court of Pennsylvania.

Argued Oct. 16, 1979.

Decided April 30, 1980.

Stanley Bashman, Philadelphia, for appellant.

James M. Penny, Jr., Asst. City Sol., Ralph J. Teti, Senior Trial Asst., Philadelphia, for appellee.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, NIX, MANDERINO, LARSEN and FLAHERTY, JJ.

OPINION

NIX, Justice. ^*

The Philadelphia Civil Service Commission held that appellant, Nicholas Fabio, was guilty of "conduct unbecoming an officer," ¹ and ordered his dismissal from the Philadelphia Police Department. The Common Pleas Court of Philadelphia and the Commonwealth Court affirmed appellant's dismissal. 30 Pa.Cmwlth. 203, 373 A.2d 751 (1977). We granted review ² in order to determine the constitutionality of Article I, section 1.75 of the Philadelphia Police Duty Manual.

Appellant joined the Philadelphia Police Department in November 1969. He was rated "overall superior" in his last performance report. On October 1, 1973, appellant's commanding officer received a telephone call from John Gleason, appellant's father-in-law. Mr. Gleason stated that he wished to register a complaint against Police Officer Steven Richman for "stealing" his daughter away from the appellant. Mr. Gleason also asserted that Officer Richman was responsible for arranging his younger daughter, Helen, to have sexual relations with other police officers.

As a result of this telephone conversation, appellant's commanding officer commenced an investigation. The investigation disclosed that appellant and his wife were having marital problems and that appellant was convinced that an extra-marital sexual experience would improve their marriage. Interviews with appellant's wife revealed that appellant had been continuously urging her to have a sexual affair with another man and that she finally consented. Appellant procured Officer Richman as a partner for his wife and Officer Richman's girlfriend for himself. In July 1973, the couples met in Richman's apartment and appellant's wife had sexual relations with Richman. Subsequently, the appellant instigated an affair with his wife's eighteen year old sister, Helen Gleason. On September 2, 1973, the appellant and his wife separated.

Based upon the above activities, the appellant was charged with violating Article I, Section 1.75 of the Philadelphia Police Duty Manual. The Police Board of Inquiry found appellant guilty and recommended dismissal. The Philadelphia Civil Service Commission, Court of Common Pleas of Philadelphia and the Commonwealth Court of Pennsylvania affirmed appellant's dismissal.

On appeal appellant first contends that on its face, Article I, Section 1.75 of the Philadelphia Police Duty Manual is unconstitutionally void for vagueness. A law is void on its face if it is so vague that persons "of common intelligence must necessarily guess at its meaning and differ as to its application." Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). See also Note, "The void for vagueness doctrine in the Supreme Court," 109 U.Pa.L.Rev. 67 (1960). The void for vagueness doctrine incorporates the due process notions of fair notice or warning. Grayned v. Rockford, 408 U.S. 104, 108-109 n. 4, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222 (1972); Papachristou v. Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1971); Commonwealth v. Skufca, 457 Pa. 124, 131, 321 A.2d 889 (1974). Also the doctrine mandates that lawmakers set reasonably clear guidelines for law enforcement officers and triers of fact in order to prevent "arbitrary and discriminating enforcement." Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1973); see also Commonwealth v. Skufca, 457 Pa. at 131, 321 A.2d at 893. Therefore, in reviewing a void for vagueness challenge, we must consider both the essential fairness of the law ³ and the impracticability of drafting the legislation with greater specificity. Arnett v. Kennedy, 416 U.S. 134, 161, 94 S.Ct. 1633, 1647, 40 L.Ed.2d 15 (1973); Meehan v. Macy, 392 F.2d 822, 835 (D.C. Cir. 1968), L. Tribe, American Constitutional Law 719 (1978).

Although at first blush a law may appear vague on its face and those subject to it without fair notice, however, it may withstand a constitutional challenge if it has been narrowed by judicial interpretation, custom and usage, see e. g., Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974); Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1973); Dynes v. Hoover, 20 How. 65, 15 L.Ed. 838 (1857). Despite appellant's objections to the contrary, the offense for which he was dismissed, "conduct unbecoming an officer," is not a nebulous or novel concept. Conceived in Great Britain, ⁴ the standard of "conduct unbecoming an officer" was adopted by the Continental Congress for the governance of the army during the Revolutionary War. ⁵ Since 1775, the offense has appeared in the United States military disciplinary codes. Moreover, many states have adopted the standard of "conduct unbecoming an officer" for their police and fire departments disciplinary codes. ⁶ Thus, it appears that the phrase "conduct unbecoming an officer" has been continuously used and successfully implemented since the eighteenth century.

Additionally, a plethora of federal and state courts have construed the offense, and few have found it void for vagueness. ⁷ In Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), Captain Levy was dismissed from the Army for conduct unbecoming an officer. Captain Levy's alleged unbecoming conduct consisted of making public statements to enlisted personnel such as, "I don't see why any colored soldier would go to Viet Nam, and if sent should refuse to fight because they are discriminated against and denied their freedom in the United States. . . ." Pursuant to the due process clause of the fifth amendment, Captain Levy challenged his dismissal for conduct unbecoming an officer on the grounds that the offense is void for vagueness. The Supreme Court rejected appellant's argument and explained that "(e)ach (article of the Military Code) has been construed by the United States Court of Military Appeals or by other military authorities, . . . (so as to limit its scope, thus narrowing) the very broad reach of the literal language of the articles, and at the same time (supplying) considerable specificity by way of examples of conduct that they cover." Id. at 752-54, 94 S.Ct. at 2560. The Court also pointed out that "long standing customs and usages of the services impart accepted meaning to the seemingly imprecise standards . . . ." Id. at 747, 94 S.Ct. at 2557. In conclusion, the Court held that Captain Levy was not denied due process since there was no reasonable doubt that he was aware that his statements constituted conduct unbecoming an officer and were to the prejudice of the armed services.

In Pennsylvania, our courts' continuous construction ⁸ of the phrase "conduct unbecoming an officer" has resulted in refining the offense to a clearly discernible standard. In Zeber Appeal, 398 Pa. 35, 156 A.2d 821 (1951), we enunciated that:

Unbecoming conduct on the part of a municipal employee, especially a policeman or fireman, is any conduct which adversely affects the morale or efficiency of the bureau to which he is assigned. It is indispensable to good government that a certain amount of discipline be maintained in the public service. Unbecoming conduct is also any conduct which has a tendency to destroy public respect for municipal employees and confidence in the operation of municipal services. It is not necessary that the alleged conduct be criminal in character nor that it be proved beyond a reasonable doubt.

Id. at 43, 156 A.2d at 825; Baker Case, 409 Pa. 143, 146, 185 A.2d 521 (1962).

Further, our courts have ruled upon specific types of behavior which are deemed to be unbecoming conduct. See e. g., Baker Case, supra (presence at an illegal gambling club); Vega Appeal, 383 Pa. 44, 117 A.2d 736 (1955) (not taking a woman acquaintance directly home, but instead making improper advances to her, or signing Mr. and Mrs. in a hotel registry, while not accompanied by a spouse); Vandergrift Borough v. Polito, 407 Pa. 286, 180 A.2d 215 (1962) (adultery); Zeber Appeal, 398 Pa. 35, 156 A.2d 821 (1959) (sex with a retarded sixteen year old girl); DiCiacco v. Civil Service Comm. of Phila., 37 Pa.Cmwlth. 77, 389 A.2d 703 (1978) (illegally retaining possession of heroin and giving it in exchange for narcotic sale information); and Oswald v. Allentown, 36 Pa.Cmwlth. 238, 388 A.2d 1128 (1978) (patrolman providing access to, and use of an apartment unit to others for activities which could only bring discredit to the police bureau). Therefore, if we apply the United States Supreme Court's analysis in Parker v. Levy to a similar challenge asserted by appellant, we find that our courts have constitutionally construed "conduct unbecoming an officer", defining its literal language and providing specific examples of proscribed conduct. A person of ordinary intelligence is given fair notice that his contemplated conduct is forbidden. Commonwealth v. Skufca, 457 Pa. at 131, 321 A.2d at 893; Chester v. Elam, 408 Pa. 350, 356, 184 A.2d 257 (1962).

Additionally, it would be impracticable for the Police Department to write § 1.75 of its Duty Manual with greater specificity. The title of Article I of the Philadelphia Police Department Duty Manual is "Conduct Unbecoming an Officer." Within Article I there are fifteen sections detailing separate offenses which constitute unbecoming conduct. These separate prohibitions range from § 1.20, "idle conversations with known gamblers while on or off duty"; § 1.60, "odor of alcohol on breath"; to § 1.45, "using rude or insulting language or conduct offensive...