Graci v. Pennsylvania State Police
| Decision Date | 14 August 1974 |
| Citation | 324 A.2d 887,14 Pa.Cmwlth. 630 |
| Parties | Lieutenant Colonel Charles S. GRACI, Appellant, v. PENNSYLVANIA STATE POLICE and James D. Barger, Commissioner of Pennsylvania State Police, Appellees. |
| Court | Pennsylvania Commonwealth Court |
Martson & Snelbaker, Richard C. Snelbaker, Mechanicsburg, for appellant.
Israel Packel, Atty. Gen., Benjamin Lerner, Marc Kapustin, Deputy Attys. Gen., Dept. of Justice, Harrisburg, for appellees.
Before BOWMAN, President Judge, and CRUMLISH, Jr., KRAMER, WILKINSON, MENCER, ROGERS and BLATT, JJ.
This is an appeal by Lieutenant Colonel Charles S. Graci from the action of the Commissioner of the Pennsylvania State Police in dismissing appellant from the Pennsylvania State Police as recommended by a Court-martial Board convened to hear charges lodged against him.
It was and still is the practice of the State Police to administer promotional examinations to state troopers. Promotion from Private to Corporal, Corporal to Sergeant, and Sergeant to Lieutenant is based, in part, upon the results of these examinations. Examinations are prepared by an independent consulting agency, and then reviewed by a Promotional Review Board, composed of State Police officers, for accuracy and clarity.
On September 6, 1972, appellant, at the invitation of the then Commissioner, Rocco P. Urella, attended the final review session of the Promotional Review Board of the State Police, at which meeting the questions and answers of the promotional examinations, and, in particular, the Sergeant to Lieutenant examination, were discussed by all persons present, including the appellant.
Prior to the administering of the Sergeant to Lieutenant examination on October 27, 1972, the first sixteen and last nine questions of this examination were scrambled, with the desired result that the answer sequence was also scrambled. Sergeant Graci, the appellant's brother, took this examination, and of the 347 persons who took the examination, 69 placed higher than Sergeant Graci and 9 received an identical score.
The Commissioner appointed a three member Disciplinary Board of Review on February 28, 1973, to investigate alleged irregularities in the conduct of the promotional examinations. On March 2, 1973, this Board recommended that court-martial proceedings against appellant be instituted, and on March 5, 1973, Deputy Commissioner Lieutenant Colonel Wellendorf filed charges and specifications against appellant. The Commissioner convened a Court-martial Board on March 15, 1973, and a hearing lasting 12 days was commenced on June 17, 1973. The Court-martial Board found appellant guilty of all charges and recommended his dismissal, which resulted in the Commissioner's action from which this appeal was taken.
Before considering the merits of this appeal we must first delineate our scope of review. Although the proceedings before the Court-martial Board were conducted as though a criminal proceeding, it is essentially an administrative action. Accordingly, this Court recently held in Luchansky v. Barger, Pa.Cmwlth., 321 A.2d 376 (1974), that our scope of review was one of substantial evidence enlarged to reflect the Commissioner's regulation, effective in this case, that the burden of proof was that of one beyond a reasonable doubt. That is, there must be substantial evidence that the appellant was guilty beyond a reasonable doubt.
Appellant first contends that court-martial procedure deprives him of his constitutional rights. We decided this exact issue in Dussia v. Barger, 10 Pa.Cmwlth. 167, 309 A.2d 607 (1973), and have recently reaffirmed our opinion as to the constitutional validity of this procedure in Luchansky, supra. These decisions are dispositive of appellant's contention and further consideration thereof is unnecessary.
The appellant had the following charges and specifications preferred against him by Lieutenant Colonel Wellendorf resulting in the court-martial proceeding:
'Charge: Major Violations of Code of Conduct
Lt. Col. Charles S. Graci is charged with Violation of Field Regulation FR 1--1, paragraphs 1.01 and 1.12A.
These charges result from the actions of Lt. Col. Charles S. Graci which are set forth in the following Specifications.
'Specification 1: In that Lt. Col. Charles S. Graci did on September 6, 1972, at the State Police Academy Library, Hershey, Dauphin County, Pennsylvania, during the final review of the State Police promotional examination questions and answers to be utilized in the Sergeant to Lieutenant examination in October 1972, covertly and surreptitiously document the number answers to the questions in said promotional examination.
This to the prejudice of the good order of the Pennsylvania State Police, Hershey, Dauphin County, Pennsylvania, September 6, 1972, in Violation of Field Regulation 1--1, FR 1.101.
'Specification 2: In that Lt. Col. Charles S. Graci did between September 6 and October 27, 1972, furnish the answer sequence key to the promotional examination questions in the Sergeant to Lieutenant rank examination to Sergeant Vincent J. Graci, a member of the State Police competing in said examination.
This to the prejudice of the good order of the State Police in the vicinity of Harrisburg, Dauphin County, Pennsylvania, in Violation of Field Regulation 1--1, paragraph 1.12A.'
Field Regulations FR 1--1, paragraphs 1.01 (9/15/68) and 1.12A (10/2/71), which appellant is charged with violating in Specifications 1 and 2, respectively, provide:
A Member shall so conduct himself at all times, both on and off duty, in such a manner as to reflect most favorably on the Pennsylvania State Police. Conduct unbecoming a Member shall include immorality, or any act or conduct not specifically mentioned in these regulations which tends to bring the Force into disrepute or reflects discredit upon the individual Member as a Pennsylvania State Policeman.
A. Dissemination of Information: A Member shall treat the official business of the Force as confidential. Information on the business of the Force shall be disseminated only to those for whom it is intended, as directed by a Commanding Officer, or under due process of law.'
It is the allegations contained in these specifications and charges that the evidence must sustain by the measure of proof we have defined in Luchansky if the appellees are to prevail.
A review of the record as to the evidence supporting Specification 1--alleging appellant to have covertly and surreptitiously documented answers to examination questions--falls far short of the proof required.
Appellant did not contest and readily admitted that he recorded the answers to some questions being reviewed by the Promotional Review Board. The essential question, therefore, within the ambit of this charge, is whether in doing so he acted covertly and surreptitiously, i.e., secretly and by stealth. Considering the full weight of the evidence produced by the prosecution witnesses as to this charge, only the opposite conclusion can...
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Soja v. Pennsylvania State Police
...limited to a determination of whether the findings of Soja's guilt are supported by substantial evidence. Graci v. Pennsylvania State Police, 14 Pa.Cmwlth. 630, 324 A.2d 887 (1974); Luchansky v. Barger, 14 Pa.Cmwlth. 26, 321 A.2d 376 (1974). We have carefully reviewed the entire record, giv......