McNaughton v. Civil Service Com'n of Borough of Camp Hill

• Citation: 650 A.2d 1157,168 Pa.Cmwlth. 395
• Parties: James D. McNAUGHTON, Appellant, v. CIVIL SERVICE COMMISSION OF the BOROUGH OF CAMP HILL, and the Borough of Camp Hill.
• Decision Date: 05 May 1995
• Court: Commonwealth Court of Pennsylvania

Page 1157

650 A.2d 1157

168 Pa.Cmwlth. 395

James D. McNAUGHTON, Appellant, v. CIVIL SERVICE COMMISSION OF the BOROUGH OF CAMP HILL, and the Borough of Camp Hill.

Commonwealth Court of Pennsylvania.

Argued Sept. 22, 1994.

Decided Nov. 18, 1994.

Petition for Allowance of Appeal Denied May 5, 1995.

P. Richard Wagner, for appellant.

Charles J. Hartwell, for appellees.

Before COLINS, President Judge, FRIEDMAN, J., and KELTON, Senior Judge.

COLINS, President Judge.

Officer James D. McNaughton (McNaughton) appeals an order of the Court of Common Pleas of Cumberland County (Common Pleas) dismissing his appeal of a decision of the Civil Service Commission of the Borough of Camp Hill (Commission). For the reasons set forth herein, we affirm.

The facts in this case are summarized as follows. McNaughton was employed by the Borough of Camp Hill Police Department (Department) on January 8, 1992, when his issued weapon and seventeen rounds of ammunition were stolen from his personal wall locker at the Camp Hill Police Station (station). The locker was not secured by a lock. On January 17, 1992, Stephen M. Urban, Mayor of the Borough of Camp Hill (Mayor), issued a letter informing McNaughton that his conduct violated Camp Hill Borough Police Department General Orders--Rules and Regulations--Number 29 of 66 (Rule 29), ¹ that he was being suspended for three days without pay, and had to reimburse the Borough for the loss of stolen property. Consequently, McNaughton served his suspension on January 18, 19 and 20, 1992, and issued the reimbursement check, under protest, payable to the Borough, on February 25, 1992.

McNaughton appealed the suspension imposed by the Mayor to the Commission. After a hearing on April 23, 1992, the Commission, by decision dated June 12, 1992, found it was unable to hear the case because the Borough of Camp Hill Council (Council) had not issued a decision on the matter. This decision was not appealed to Common Pleas. The Council later ratified the Mayor's suspension of McNaughton at its October 14, 1992 meeting.

McNaughton appealed his suspension to the Commission. The Commission, by stipulation of counsel, used the testimony and evidence from the April 23, 1992 hearing as the basis for its decision. Subsequently, on January 8, 1993, the Commission affirmed Council's ratification of the Mayor's suspension of McNaughton.

McNaughton appealed the Commission's decision to Common Pleas; no additional evidence was presented. Common Pleas dismissed the appeal, finding the Mayor had the power to suspend McNaughton for three days; that Council's failure to act on the suspension at its next regularly scheduled meeting did not render the suspension void that Council had the authority to act on the suspension at a later date; and, that the Commission's decision was supported by the evidence and no abuse of discretion or error of law was committed. This appeal followed.

McNaughton presents four issues for this Court's review. ² McNaughton contends Common Pleas erred in affirming the Commission's decision because: (1) the initial suspension by the Mayor was unlawful; (2) the evidence showed that McNaughton's actions with regard to securing his weapon were in compliance with the policies of the entire Department; (3) the Council's failure to act on the suspension at its next regularly scheduled meeting rendered the suspension null and void; and (4) the Commission applied an improper standard of review in conducting its hearing.

McNaughton's initial argument is based on an interpretation of The Borough Code (Code) ³ provision regarding a mayor's power to suspend police officers. ⁴ It is McNaughton's position that the Code does not permit the Mayor to make a specific recommendation regarding the number of days of suspension, but merely allows the Mayor to suspend a police officer until the next meeting of the Council.

A similar issue was considered by this Court in Moore v. Borough of Ridley Park, 135 Pa.Commonwealth Ct. 555, 581 A.2d 711 (1990). In Moore, the Court held that the "[m]ayor has an independent power to suspend [a police officer] for a period of ten days without any [c]ouncil action." Id. at 558, 581 A.2d at 712. Based on this holding, McNaughton's first argument must fail.

Next, McNaughton argues that his actions were in accord with Department policy, thus, he should not be subject to discipline. Specifically, McNaughton argues that his actions were in conformity with the Department's policy of keeping its arsenal of weapons behind closed, unlocked doors, and thus not equivalent to Rule 29's negligence requirement; the Commission rejected this as an excuse for McNaughton's conduct.

The Borough counters by arguing that McNaughton admitted the violation of Rule 29 during the hearing before the Commission, and that there is substantial evidence in the record to support the disciplinary action.

In deciding issues of substantial evidence, "a reviewing court will examine, but not weigh the evidence since the factfinding tribunal is in a better position to find the facts based upon the testimony and the demeanor of the witnesses. The court may not substitute its judgment for that of the agency." Civil Service Commission v. Poles, 132 Pa.Commonwealth Ct. 593, 599, 573 A.2d 1169, 1172 (1990), petition for allowance of appeal dismissed, 530 Pa. 31, 606 A.2d 1169 (1992). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, [but must be] ... more than a scintilla and must do more than create a suspicion of the existence of the fact to be established." Lewis, 518 Pa. at 175, 542 A.2d at 522 (citations omitted).

After review of the record, we determine that Common Pleas did not err as there is substantial evidence of record to support the Commission's determination that McNaughton violated Rule 29. At the proceeding before the Commission, testimony was presented regarding a booking policy and procedure within the Department, effective at the relevant time, which stated that lockers should be secured and locked. Further, there is testimony in the record that Corporal Thomas L. Olsen (Olsen), who created the booking policy and procedure,...