Richter v. Civil Service Commission of City of Philadelphia

• Decision Date: 18 May 1978
• Citation: 35 Pa.Cmwlth. 310,387 A.2d 131
• Parties: Elliott RICHTER, Appellant, v. CIVIL SERVICE COMMISSION OF the CITY OF PHILADELPHIA and Philadelphia Police Department.
• Court: Pennsylvania Commonwealth Court

387 A.2d 131

35 Pa.Cmwlth. 310

Elliott RICHTER, Appellant, v. CIVIL SERVICE COMMISSION OF the CITY OF PHILADELPHIA and Philadelphia Police Department.

Commonwealth Court of Pennsylvania.

May 18, 1978

Argued April 6, 1978.

Rosengarten & Goldsmith, Howard M. Goldsmith L. Bruce Hoffman, Philadelphia, for appellant.

Howland Abramson, Sheldon L. Albert, City Sol., James M. Penny, Jr. Deputy City Sol., Agostino Cammisa, Philadelphia, for appellee.

Before WILKINSON, BLATT and DiSALLE, JJ.

OPINION

DiSALLE Judge.

Elliott Richter (Appellant) was employed as a police officer with the City of Philadelphia from April, 1966 until his dismissal on August 30, 1974. Approximately two weeks previous to this date, the Police Commissioner of Philadelphia County sent Appellant a Notice of Intention to Dismiss, enumerating therein the charges against him. On August 25, 1974, Appellant, by writing, answered these charges and requested a departmental hearing. The Notice of Dismissal, reiterating the charges in the Notice of Intention to Dismiss, subsequently issued. Appellant then filed, on September 13, 1974, an appeal to the Civil Service Commission of Philadelphia (Commission). Hearings were held before the Commission on January 23, 1975, and on April 1, 1975. An adjudication, sustaining the Police Commissioner's action and denying Appellant's appeal, was thereupon filed by the Commission on September 15, 1975. Appellant then appealed to the Court of Common Pleas of Philadelphia County. That Court, on September 13, 1976, denied the appeal. This appeal followed.

Appellant was dismissed for conduct unbecoming an officer. This was based upon the following: he was observed by members of the Internal Affairs Bureau in a private drinking club accepting drinks without paying for them; he permitted service and consumption of alcoholic beverages in the club after the legal closing time by failing to take action to stop such activity; he was observed associating with Darlene Cecil, a known prostitute, with whom, during the period in question, he engaged in frequent sexual relations; he engaged in sexual relations in his living room with a woman named "Diane" while Darlene Cecil looked on; and finally, that he permitted this woman (Diane) to use his home for the use of narcotics. The Commission determined that these occurrences constituted just cause for Appellant's dismissal.

Section 8(b) of the Local Agency Law, Act of December 2, 1968, P.L. 1133, as amended, 53 P.S. § 11308, limits our scope of review in appeals from the Civil Service Commission. We must affirm the adjudication unless Appellant's constitutional rights have been violated, an error of law committed, the provisions of the Local Agency Law were violated in the proceeding before the agency, or the findings of fact are not supported by substantial evidence. Harrington v. Philadelphia Civil Service Commission, 4 Pa.Cmwlth. 580, 287 A.2d 912 (1972).

The Philadelphia Home Rule Charter provides:

"Any dismissal or demotion after the completion of the required probationary period of service, or suspension of any employee in the civil service shall be for just cause only." ^[1]

Appellant challenges the "just cause" standard since it is not defined with particularity in the Charter. He maintains that unless prior standards have been established which clearly set forth conduct which will result in dismissal or other disciplinary action, an employee cannot be deprived of his Civil Service protection.

While it is true that no categorical definition exists in the Charter, some guidelines have been provided. Neither political, religious, or racial reasons, nor labor union activity, lawful under the Charter for municipal employees, can afford a basis for dismissal. ^[2] Furthermore, the Supreme Court of Pennsylvania in O'Gorman's Appeal, 409 Pa. 571, 576-77, 187 A.2d 581, 583-84 (1963), defined "just cause" as follows:

" 'What constitutes ample (just) cause for removal . . . must necessarily be largely a matter of discretion on the part of the head of the department. To be sufficient, however, the cause should be personal to the employee and such as to render him unfit for the position he occupies, thus making his dismissal justifiable and for the good of the service.'

" . . . All the law requires is that the cause be not religious or political, but concerned solely with the inefficiency, delinquency or misconduct of the employe. A wide latitude must be left to the superior officer in fact a discretion conditioned on its exercise in good faith and not as a screen for some reason not based upon the fitness of the employe to fill the position."

We conclude, therefore, that there are sufficient standards to give "just cause" an understandable and reasonably precise meaning.

With regard to the conduct engaged in by Appellant, we note that off duty conduct may properly be considered in a charge of conduct unbecoming an officer. Eppolito v. Bristol Borough, 19 Pa.Cmwlth. 99, 339 A.2d 653 (1975); see Baker Case, 409 Pa. 143, 185 A.2d 521 (1962). There is no distinction between "private" and "public" immorality or conduct which has any bearing on the instant decision. Faust v. Police Civil Service Commission, 22 Pa.Cmwlth 123, 347 A.2d 765 (1975). In Faust, where the dismissal of a police officer for commission of acts of adultery while he was off duty was upheld, we stated that police officers are held to a higher standard of conduct than other citizens. Accord Fabio v. Civil Service Commission, 30 Pa.Cmwlth. 203, 373 A.2d 751 (1977). Appellant's presence in the club after legal closing hours and his promiscuous behavior under the present circumstances are actions which could being dishonor upon his profession and lead to a weakening of the public confidence and trust of which he is a repository. This conduct clearly amounted to just cause for his...