Guthrie v. Borough of Wilkinsburg

Decision Date28 June 1984
Citation505 Pa. 249,478 A.2d 1279
PartiesKeith GUTHRIE, Robert Garvin, Henry Riebold, Terrence Lockard, Robert K. Thomas, John Shook, Barry Almy and W. Gregory Ferrell, Appellants, v. The BOROUGH OF WILKINSBURG, Appellee.
CourtPennsylvania Supreme Court

Ronald P. Koerner, Gatz, Cohen, Segal & Koerner, P.A., Pittsburgh, for appellants.

Paul V. Ressler, Wilkinsburg, Vincent Restauri, Jr., Ambridge, for Borough of Wilkinsburg.

Frank P. Tuplin, Deputy Atty. Gen., Philadelphia, for Commonwealth of Pennsylvania, amici curiae.

Virginia S. Cook, Pittsburgh, for Pennsylvania State Association of Boroughs.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON and ZAPPALA, JJ.

OPINION

McDERMOTT, Justice.

This case tests the outer limits of what procedural rights are required under our Local Agency Law: 1 whether a police officer is entitled to notice and a hearing when his employers place a letter of warning 2 in his personnel file.

After receiving a number of complaints from citizens alleging abuse and mistreatment by Wilkinsburg police officers, the Wilkinsburg Borough Council convened special sessions to gather information concerning the charges. The Council worked with the Community Advocate Unit of the Pennsylvania Attorney General's Office who had expertise in police abuse inquiries.

In thirteen meetings, forty citizens were interviewed. Subsequently, the Council subpoenaed 3 and interviewed twenty-two Wilkinsburg police officers whose names surfaced in the initial probe.

Upon the conclusion of the inquiry, the Borough Council proposed and adopted six findings and conclusions regarding instances of police misconduct. On December 27, 1979, the Council voted to issue written warnings to seven police officers and to place the warnings in the officers' personnel files. The statements addressed improper or questionable conduct ranging from physical and verbal abuse to instances where regulations and procedures were not adhered to. 4 The officers were allowed to place a counterstatement concerning the charges in their personnel files, but chose not to exercise this option. No further action was taken against the officers: they were not fired, demoted or suspended, nor were their salaries reduced or frozen.

The officers petitioned for review of the Borough Council's actions in the Allegheny County Court of Common Pleas under the Local Agency Law, 2 Pa.C.S. § 752. That court held that the Borough's actions did not constitute an adjudication, and dismissed the case on jurisdictional grounds. The Commonwealth Court, 73 Pa.Cmwlth. 393, 458 A.2d 307, affirmed and we granted allocatur. We now affirm.

Whether a hearing and notice is required under the Local Agency Law depends on whether a local agency's actions constitute an adjudication. Section 504 of the Act provides:

§ 504. Hearing and Record

No adjudication of a Commonwealth agency shall be valid as to any party unless he shall have been afforded reasonable notice of a hearing and an opportunity to be heard. All testimony shall be stenographically recorded and a full and complete record shall be kept of the proceedings.

An "adjudication" is defined in Section 101 of the Act as:

Any final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities, duties, liabilities or obligations of any or all of the parties to the proceeding in which the adjudication is made....

Thus, for a letter of warning to qualify as an adjudication, requiring notice and a hearing, a two-prong test must be met: 1) the letter must be an agency's final order, decree, decision, determination or ruling and 2) it must impact on a person's personal or property rights, privileges, immunities, duties, liabilities or obligations. See Kerr v. Commonwealth, Department of State, 35 Pa.Cmwlth.Ct. 330, 333-34, 385 A.2d 1038, 1039 (1978). ("[A] letter can constitute an adjudication in instances where it is a final directive of final determination by the agency affecting personal or property rights.") 5

It is evident that the letters of warning in this case constituted a final decision, determination or ruling. The letters embodied the Council's collective decision, and were intended to announce their final action on this matter.

The crucial question here is whether the letters affected the officers' personal or property rights, privileges, immunities, duties, liabilities or obligations. In government employment situations, under both the Local Agency Law and procedural due process, 6 an employee has been held to possess such a property right if he has an enforceable expectation to continued government employment. That expectation may be guaranteed by statute, contract, or be quasi-contractual, as in tenure. Amesbury v. Luzerne County Institution District, 27 Pa.Cmwlth.Ct. 418, 421, 366 A.2d 631, 633 (1976), citing Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

No doubt the officers here had an enforceable property interest in their continued employment as police officers. 7 If the officers were dismissed, suspended or demoted they would have been entitled to notice and a hearing, and an appeal under the Local Agency Law. However, the officers were not removed, suspended or reduced in rank; they were warned about inappropriate conduct. Thus, no property right was implicated here.

In Sterling v. Commonwealth, Department of Environmental Resources, --- Pa. ---, 470 A.2d 101 (1983), we strictly construed the term "demotion," concluding that a state employee whose compensation was reduced by two steps was not demoted, and thus the employee was not entitled to a hearing under the Civil Service Act. If it was a "faulty premise" in Sterling that every disciplinary action resulting in the diminution of compensation is a demotion, it would certainly be faulty to propose that the issuance of a warning is a reduction in rank. 8

The interest appellants are attempting to protect is an intangible one: a clean personnel file looking towards future promotion with the department and/or future employment elsewhere. To have a protectable property interest, "a person must clearly have more than an abstract need or desire for it." Board of Regents v. Roth, supra, 408 U.S. at 577, 92 S.Ct. at 2709. Appellants have failed to establish any concrete injury which has flowed from the issuance of the warnings. The mere theoretical effect on possible promotions or future employment prospects is too abstract to constitute a property interest. Neither due process nor the Local Agency Law can be viewed to protect such remote, future, indirect or speculative rights. See Beauty Hall, Inc. v. State Board of Cosmetology, 418 Pa. 225, 210 A.2d 495 (1965).

Apart from a property interest, we must also examine whether the action of the Borough intruded upon any personal right, privilege or liberty interest, converting the issuance of the letters into an adjudication. In some instances, government action seriously criticizing an individual has been held to implicate a liberty interest, triggering due process rights. 9 However, a government inspired criticism must be combined with a concrete alteration of legal status to justify the invocation of procedural safeguards. Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). In government employment cases, the criticism must be coupled with discharge to require notice and hearing requirements.

In Paul, the Court said that its prior Roth holding did not indicate "that a hearing would be required each time the state in its capacity as employer might be considered responsible for a statement defaming an employee who continues to be employed." Id. at 710, 96 S.Ct. at 1165. (Emphasis supplied.) See Johnson v. University of Pittsburgh, 435 F.Supp. 1328, 1369-70 (W.D.Pa.1977) ("In cases where a stigma is placed upon the plaintiff as a result of charges of immorality or dishonesty in connection with the termination then there must be a notice and a chance to be heard.... Making a person less attractive for employment is not a deprivation of liberty.") citing, Codd v. Velger, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977). See also, Huff v. County of Butler, 524 F.Supp. 751 (W.D.Pa.1981); Sullivan v. Brown, 544 F.2d 279 (6th Cir.1976).

The term "personal rights," as used in the Local Agency Law, must be construed to effectuate the purpose of the Act. The law "was enacted to provide a forum for the enforcement of statutory rights where no procedure otherwise exists." Boehm v. Board of Education, School District of Pittsburgh, 30 Pa.Cmwlth.Ct. 468, 474, 373 A.2d 1372, 1375 (1977). It was not designed to protect amorphous interests such as theoretical promotional possibilities or employment elsewhere. No statute gives police officers the right to a hearing to challenge the validity of an issued warning, as the Civil Service statute does in the event an officer is removed, suspended, or reduced in rank by a borough. 53 P.S. § 46191. Thus, no statutory right is involved in the issuance of a written warning under the Local Agency Law.

Since the officers here were not discharged, demoted or suspended, there was no concrete alteration of legal status. No personal interest was involved.

Finally, we note that there are significant public policy reasons favoring our decision. Public employers require reasonable freedom to quickly sanction their employees when they do wrong. "It is indispensable to good government that a certain amount of discipline be maintained in the public service." Zeber's Appeal, 398 Pa. 35, 43, 156 A.2d 821, 825 (1959). The purpose of such an action is not to punish, but to warn and instruct. A warning serves as a "useful tool to help the administrator correct minor problems before they grow into major ones." Holt v. Board of Education of Webutuk Central School District, 52 N.Y.2d 625, 633, 439...

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