Johnson v. Lansdale Borough
| Decision Date | 01 March 2018 |
| Docket Number | No. 134 C.D. 2013,134 C.D. 2013 |
| Parties | George JOHNSON v. LANSDALE BOROUGH and Lansdale Borough Civil Service Commission, Appellants |
| Court | Pennsylvania Commonwealth Court |
Scott E. Blissman, Philadelphia, for appellants.
Blake E. Dunbar, Jr., Trappe, for appellee.
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE DAN PELLEGRINI, Senior Judge1
OPINION BY PRESIDENT JUDGE LEAVITT
On remand from the Pennsylvania Supreme Court, we review an order of the Court of Common Pleas of Montgomery County (trial court) that modified the Lansdale Borough Civil Service Commission's discipline of Lansdale Borough police officer George Johnson. The Borough Commission affirmed the Borough's termination of Johnson's employment in spite of ruling that the Borough did not prove the four charges it lodged against Johnson. After Johnson's further appeal, the trial court affirmed the Borough Commission in part but reversed its ruling on two charges. The trial court held that the single remaining and sustained charge did not warrant Johnson's removal and, thus, modified the discipline to a 30–day suspension without pay. This Court affirmed the trial court, and the Supreme Court vacated this Court's order. It did so because this Court proceeded on the incorrect premise that the trial court's review of the Borough Commission's adjudication was de novo . The Supreme Court held that the trial court's review was governed by the narrower contours set forth in Section 754(b) of the Local Agency Law2 and remanded for this Court's reconsideration of the trial court's decision using the correct standard. Following reconsideration on remand, we affirm the trial court.
Factual and Procedural Background
Johnson, a Borough police officer since 1997, did not appear before the district justice to testify at a preliminary hearing on May 18, 2010, in a driving under the influence (DUI) case in which Johnson had been the arresting officer. Because Johnson was not scheduled to work the day of the hearing, the police department could not give the prosecutor information that might have allowed the district justice to reschedule the hearing. Accordingly, the district justice dismissed the DUI charges against the defendant.
A criminal complaint dismissed at a preliminary hearing may be reinstituted so long as the statute of limitations has not run. Commonwealth v. Thorpe , 549 Pa. 343, 701 A.2d 488, 489 (1997). However, the decision to reinstitute charges must be made by the prosecutor. PA.R.CRIM.P. 544, comment .3 When Johnson returned to work on May 19, 2010, he realized he had missed the preliminary hearing and began the process necessary to have the DUI charges reinstated.
On May 26, 2010, the Borough Chief of Police, Robert McDyre, called Johnson into his office to discuss his absence from the preliminary hearing. Sergeant Richard Bubnis and Sergeant Alex Kromdyk were also present for the interview, which lasted approximately 15 minutes. The interview was not recorded, and there is some disagreement about what was said there.
Johnson stated that he forgot about the preliminary hearing, which was scheduled for a day when he was off work. Chief McDyre asked Johnson if he would try to reinstate the charges and whether reinstatement was even possible where the officer has forgotten to attend the preliminary hearing. Johnson responded that he had already discussed the matter with the district justice and told him that he had been sick on the day of the hearing. Johnson also stated that he had begun drafting a letter to the district attorney in an effort to get the charges reinstated. McDyre requested a copy of the draft letter, which Johnson retrieved, and it stated as follows:
I did not attend the Preliminary Hearing because he [sic] was home sick . My department was unaware of this because I was on a scheduled day off and I did not notify them [sic] of my illness until I returned to work. [The district justice] was not notified by me of the situation until several days later and he had already dismissed the case.
Reproduced Record at 657a (R.R. __) (emphasis added).
McDyre read the letter and opined that it was a lie, in view of Johnson's earlier statement to McDyre that he had forgotten about the hearing. Johnson replied that he was, in truth, sick and in bed for most of that day, which is why he forgot the hearing. Johnson also stated that he would have attended the hearing had he remembered it, notwithstanding his sickness. Concluding that Johnson had been untruthful to the district justice and in his draft letter to the district attorney, McDyre placed Johnson on administrative leave.
On June 10, 2010, the Borough conducted a Loudermill hearing.4 In attendance were the Borough mayor, Sergeant Bubnis, Sergeant Kromdyk, as well as Johnson and his union representative, Officer Justin DiBonaventura. The purpose of the hearing, which lasted approximately five minutes, was to give Johnson an opportunity to explain why he should not be fired. Johnson recalled that on May 17, 2010, he "called in sick" and did not work because of a sinus migraine headache. Notes of Testimony (N.T.), 7/26/2010, at 81; R.R. 267a. The next day, which was the day of the preliminary hearing on the DUI case, Johnson was not scheduled to work.5 Johnson stated that he left home to do an errand in the morning. Because he began to feel ill, he returned home, took medicine and went to bed. Chief McDyre recommended that Johnson's employment be terminated for lying about his reason for missing the preliminary hearing.
On June 18, 2010, the Borough issued the following statement of charges to Johnson:
The stated grounds for all four charges were the same: the Borough's Civil Service Ordinance and the Borough's Rules of Conduct for Police Officers. The Civil Service Ordinance states, in relevant part, as follows:
CODE OF THE BOROUGH OF LANDSDALE , Chapter 7, Civil Service Commission, § 7–7.A., "Suspensions, removals and reductions in rank"; R.R. 614a. Similarly, the Police Department's Rules of Conduct state as follows:
Landsdale Borough Police Department, Procedural Directive # 6, Rules of Conduct, Section I; R.R. 612a. In sum, the Borough based its removal decision upon neglect or violation of duty, inefficiency, disobedience of orders and conduct unbecoming of an officer.
On June 23, 2010, the Borough Council voted to remove Johnson from his position as a police officer. Johnson appealed to the Borough's Civil Service Commission, which conducted hearings over the course of four days.
Chief McDyre testified that, based upon his interview of Johnson at the May 26, 2010, meeting and Johnson's statements at the Loudermill hearing, he believed Johnson should be discharged.
Sergeant Bubnis, who was Johnson's supervisor, testified that when he learned that Johnson did not appear at the May 18, 2010, preliminary hearing, he reported that fact to Chief McDyre, who called the meeting on May 26, 2010. Bubnis testified that at this meeting, Johnson apologized for missing the preliminary hearing, which he had forgotten. Johnson also stated that he had already apologized to the district justice, to whom he had explained that he had been sick that day. Bubnis stated...
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