Ray v. Civil Serv. Comm'n of Borough of Darby

• Decision Date: 05 January 2016
• Docket Number: 359 C.D. 2015,Nos. 215 C.D. 2015,s. 215 C.D. 2015
• Citation: 131 A.3d 1012
• Parties: Peter RAY, Appellant v. CIVIL SERVICE COMMISSION OF BOROUGH OF DARBY and Borough of Darby. Peter Ray v. Civil Service Commission of Borough of Darby and Borough of Darby Appeal of: Borough of Darby.
• Court: Pennsylvania Commonwealth Court

131 A.3d 1012

Peter RAY, Appellant

v.CIVIL SERVICE COMMISSION OF BOROUGH OF DARBY and Borough of Darby.

Peter Ray

v.Civil Service Commission of Borough of Darby and Borough of Darby

Appeal of: Borough of Darby.

Nos. 215 C.D. 2015

359 C.D. 2015

Commonwealth Court of Pennsylvania.

Argued Oct. 6, 2015.

Decided Jan. 5, 2016.

Reargument Denied Feb. 22, 2016.

S. Stanton Miller, Jr., Media, for designated appellant Peter Ray.

Francis J. Catania, Media, for appellee Civil Service Commission of Borough of Darby.

Raymond J. Santarelli and Aimee L. Kumer, Blue Bell, for appellee Borough of Darby.

BEFORE: BONNIE BRIGANCE LEADBETTER, Judge, and P. KEVIN BROBSON, Judge, and ANNE E. COVEY, Judge.

OPINION BY Judge P. KEVIN BROBSON.

Before this Court are the consolidated appeals of Peter Ray (Officer Ray) and the Borough of Darby (Borough), from an order of the Court of Common Pleas of Delaware County (trial court), which affirmed in part and reversed in part an order of the Civil Service Commission of the Borough of Darby (Commission). The Commission upheld the Borough's suspension and termination of Officer Ray's employment for neglect of duty and conduct unbecoming an officer. The trial court reversed the Commission's order to the extent it upheld Officer Ray's suspension without pay and affirmed the Commission's order to the extent it upheld the termination of Officer Ray's employment. Officer Ray appeals the portion of the trial court's order affirming his termination. The Borough cross-appeals the portion of the trial court's order reversing Officer Ray's suspension without pay. We now affirm in part and reverse in part.

I. BACKGROUND

The Commission's findings reveal the events leading to the Borough's suspension and, ultimately, its termination of Officer Ray's employment with the Borough. On February 28, 2012, at 6:03 p.m., Officer Ray, while employed as a police officer of the Borough, and two other officers, Officers Aaron Salisbury and Keith Parker, responded to a call of a woman yelling at 706 Pine Street. Officer Ray approached the residence and spoke to Henry Besson, who owned the home. Officers Ray, Salisbury, and Parker and Corporal Joseph O'Donnell entered the home and saw an adult woman and a child. When asked about the woman yelling, Mr. Besson responded that his intoxicated cousin was yelling earlier in the night. Officers Ray, Parker, and Salisbury entered the basement of the residence and spoke with an intoxicated woman who appeared to be about twenty years old. The woman, later identified as Fepee Kannah, exhibited slurred speech and spoke with a heavy accent. Officer Ray could not understand her name when she told him, nor did she provide identification. Ms. Kannah told Officer Ray that she lived at 706 Pine Street and that she was all right. Officer Ray testified that Ms. Kannah was not injured, falling down, or in distress. Ms. Kannah told Officer Ray that she wanted to dance.

At 6:09 p.m., Officers Parker and John Ettore responded to a priority call concerning a "possible subject with a gun." At 6:12 p.m., Officer Ray informed the radio room that the police had finished responding to the call at 706 Pine Street. Officer Salisbury responded to a call for an open door on North Ninth Street at 6:20 p.m., and, at 6:23 p.m., Officer Ray indicated that he was "right around the corner" from the open door call. At 6:23 p.m., the radio room received another call of a woman yelling at 706 Pine Street. Officer Ettore communicated with the radio room regarding the call. Ten seconds later, Officer Ray responded on the radio that "we just came from there, they are putting her to bed." (Reproduced Record (R.R.) at 434a.) The Borough police did not respond to the second call concerning 706 Pine Street. At 6:32 p.m., the police received another call concerning 706 Pine Street. The caller indicated that the police had not responded last time and that there was "something going on" at the residence. Officer Parker informed the caller that the police had responded and that the woman was all right. Officer Parker responded to 706 Pine Street and informed Mr. Besson that he would be cited if the noise did not cease. On February 29, 2012, the police received another call concerning 706 Pine Street. The caller was Ms. Kannah, who indicated that she had been raped. The police responded to the call and arrested Mr. Besson and another man, Emmanuel Benson. Lieutenant Richard Gibney investigated the alleged rape of Ms. Kannah.¹

Police Chief Robert Smythe conducted an investigation concerning Officer Ray's response to the calls concerning 706 Pine Street. On April 5, 2012, Chief Smythe issued Officer Ray a notice of charges pursuant to Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (holding that "public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story"). The notice of charges explained that Officer Ray's response to the incident may constitute violations of the police department's rules and regulations, neglect of duty, and conduct unbecoming an officer. In support of the charges, Chief Smythe explained that Officer Ray failed to take appropriate action upon finding that Ms. Kannah was highly intoxicated, that Officer Ray waived Officer Ettore off the second call, that Officer Ray did not respond to the second call himself after waiving off Officer Ettore, and that Officer Ray failed to properly identify Ms. Kannah.

Officer Ray, represented by counsel, attended a Loudermill hearing on April 10, 2012. On April 11, 2012, Chief Smythe issued Officer Ray a notice of discipline, providing that Officer Ray's employment was being suspended without pay and that Chief Smythe recommended that the Borough Council terminate Officer Ray's employment. The notice of discipline stated that Officer Ray's conduct violated the police department's rules and regulations, and constituted conduct unbecoming an officer and neglect of duty. Specifically, the notice provided:

The above-described [conduct] violates the disciplinary code contained in the Code of the Borough ...: conduct unbecoming an officer, §§ 24–7.14 and § 24–7.4—concerning repeated violations of departmental rules and regulations, or any other course of conduct indicating that a member has little or no regard for his responsibility as a member of the police department and knowingly and willfully making a false entry in any departmental report or record; § 24–7.35 concerning failure to take appropriate action concerning illegal activity.

In addition, this conduct constitutes violation of the Borough ... Police ... Commission Rules and Regulations, §§ 503B. (neglect or violation of any official duty) and D. (inefficiency, neglect, intemperance, disobedience of orders or conduct unbecoming an officer).

(R.R. at 301a.) Chief Smythe further concluded that Officer Ray's conduct violated

[the] Borough Police Department[']s Policy and Procedure Manu[a]l §§ 1.75 concerning repeated violations of departmental rules and regulations or any other course of conduct indicating that a member has little or no regard for his responsibility as a member of the police department; 4.01 concerning failure to take police action when necessary, at any time, in or out of uniform, and/or failure to make a written report of same to commanding officer[;] 4.25 [concerning f]ailure to conduct proper, th[o]rough and complete investigation; 4.50 concerning failure to properly patrol beat or sector, unauthorized absence from assignment, failure to respond to radio call, idle conversation or loafing; 20.002 concerning general responsibilities of members at the crime scene.

(Id. at 301a.) The Borough Council passed a motion to terminate Officer Ray's employment on April 18, 2012, and issued a notice of termination to Officer Ray on April 19, 2012. (Id. at 302a.)

Officer Ray demanded a hearing concerning the suspension and termination of his employment pursuant to Section 1191 of the former Borough Code, Act of February 1, 1966, P.L. (1965) 1656, formerly 53 P.S. § 46191, which was then in effect.² During the hearing, the Commission heard the testimony of Lieutenant Richard Gibney, Detective Corporal Brian Pitts, Chief Smythe, and Officer Ray. The Borough attempted to introduce the written statements of Officers Parker, Salisbury, and Ettore, as well as a criminal investigation incident report. Officer Ray objected to the admission of these documents as hearsay, but the Commission did not rule on the admission of the documents during the hearings.

The Commission ultimately sustained the suspension and termination of Officer Ray's employment. The Commission issued an adjudication report in which it concluded that Officer Ray had neglected his duty and committed conduct unbecoming an officer. The Commission based its conclusion on the following facts:

After the second call to respond to 706 Pine St., Officer Ray, as a senior officer, "cancelled the call" by telling Officer Ettore that he had already handled the call. Officer Ettore, relying on this information from a senior officer, did not respond to the second call. Officer Ray violated [Borough police department] procedure that is to answer every call. Answering this second call was Officer Ray's responsibility. Furthermore, Officer Ray was negligent and committed conduct unbecoming for failing to take Ms. Kannah into his custody, or to take her to the hospital. The officer's indifference to her vulnerable condition destroyed public respect for and confidence in the [Borough] police department.

(Comm'n Adjudication Report at 16.) In so doing, the Commission explained that it did not rely on hearsay evidence in reaching this conclusion. The Commission made no findings or conclusions with respect to Officer Ray's failure to identify Ms. Kannah. Officer Ray appealed to the trial court. On February 5, 2015, the trial court...