Romanick v. Rush Twp.

• Decision Date: 04 April 2013
• Citation: 67 A.3d 62
• Parties: Robert J. ROMANICK, Appellant v. RUSH TOWNSHIP and the Rush Township Board of Supervisors.
• Court: Pennsylvania Commonwealth Court

67 A.3d 62

Robert J. ROMANICK, Appellant

v.RUSH TOWNSHIP and the Rush Township Board of Supervisors.

Commonwealth Court of Pennsylvania.

Argued March 12, 2013.

Decided April 4, 2013.

Sean T. Welby, Harrisburg, for appellant.

Eric M. Brown, Chester Springs, for appellees.

BEFORE: PELLEGRINI, President Judge, SIMPSON, Judge (P.), COLINS, Senior Judge.

OPINION BY President Judge PELLEGRINI.

Robert J. Romanick (Romanick) appeals from the Schuylkill County Court of Common Pleas' (trial court) August 9, 2012 order affirming the Rush Township (Township) Board of Supervisors' (Supervisors) decision and entering judgment in favor of the Township and the Supervisors. There are four issues for this Court's review: (1) whether Romanick was removed from his position; (2) whether the Township failed to comply with the Police Tenure Act (Tenure Act),¹ the Second Class Township Code (Township Code) ² and due process; (3) whether Romanick engaged in activity prohibited by the Tenure Act; and (4) whether the Township failed to establish that the proven charges were sufficient to warrant Romanick's removal. We affirm.

Romanick was employed as the Township's Police Chief from 2005 to January 4, 2009, when the Supervisors removed him as police chief, demoting him to patrolman without proffering charges against him. Romanick filed a mandamus action in the trial court seeking to enforce his demand for a Statement of Charges against him and a hearing under the Tenure Act. Section 912 of the Township Code provides that:

No person employed as a regular full-time police officer in any police department, except officers appointed for a probationary period of one year or less, shall be suspended, removed or reduced in rank except under the [Tenure Act], entitled “An act regulating the suspension, removal, furloughing and reinstatement of police officers in boroughs and townships of the first class having police forces of less than three members, and in townships of the second class.” (Emphasis added).

53 P.S. § 66912. Section 2 of the Tenure Act specifies:

No person employed as a regular full time police officer ... shall be suspended, removed or reduced in rank except for the following reasons: (1) physical or mental disability affecting his ability to continue in service ...; (2) neglect or violation of any official duty; (3) violating of any law which provides that such violation constitutes a misdemeanor or felony; (4) inefficiency, neglect, intemperance, disobedience of orders, or conduct unbecoming an officer; (5) intoxication while on duty.... A written statement of any charges made against any person so employed shall be furnished to such person within five days after the same are filed. (Emphasis added).

53 P.S. § 812.

Because the Tenure Act provisions were not complied with, the parties agreed to an order in which the Supervisors were to provide Romanick with a Statement of Charges on or before December 20, 2009, and to provide him with a Tenure Act hearing within 30 days of the issuance of the Statement of Charges.

The Supervisors then sent Romanick a letter on December 18, 2009, identifying the charges against him as “neglect of duty, incompetence” and “inefficiency, neglect, intemperance, disobedience of orders, or conduct unbecoming an officer,” and citing several reasons for each charge. Reproduced Record (R.R.) at 29a. The Supervisors appointed a Hearing Officer who was to make findings and credibility determinations.

Before the Hearing Officer, the Township's Secretary/Treasurer Terri Conville (Conville) testified that Supervisor Marion Lazur and she had been asking Romanick for years to catalog the evidence room, but he refused. They finally gave him a written directive in response to which Romanick replied, “he'll get to it when he has time.” R.R. at 117a, 434a. Conville also testified that she believed Romanick was at times disrespectful to the Supervisors and she heard him curse at them when they would give him directives. Id. at 103a.

Township Supervisor Stephen Simchak (Simchak) testified that Romanick purchased a rifle for over $1,000.00 with no prior approval from the Supervisors. R.R. at 161a–162a. He also related how he was on the phone with a part-time police officer explaining the policy regarding the use of new vehicles being restricted for full-time officers when the part-time officer began getting belligerent on the phone. Simchak asked Romanick to get on the phone so he could tell him to discipline the officer. Instead of getting on the phone, Romanick began cursing and became belligerent as well. The Supervisors subsequently disciplined both Romanick and the part-time officer. Romanick admitted that he never disciplined said officer. See id. at 346a. Simchak further testified that when the Supervisors would attempt to explain what the Solicitor wanted from Romanick, he would respond: “You are stupid, your solicitor is stupid. F this and F that. It's my F'in department and I'm going to do it the way I want to do it. You are all stupid.” Id. at 163a. Simchak also testified about an incident on August 10, 2007, wherein Romanick “blew up” in the Township building and was very disrespectful to the Supervisors in the presence of Township employees. Id. at 131a, 439a.

Carol Simchak, Simchak's wife, testified that at a block party on July 4, 2006, in front of many people, she heard Romanick say “ ‘[d]o you see that guy over there, that's Steve Simchak, he's the [S]upervisor. One day I'm going to punch him in the effing mouth.’ But he did not say effing. He said the profanity.” R.R. at 84a.

Carmen Forke (Forke), the Township's auditor, related how Romanick would refer to the Supervisors as a—holes and talk about how “ ‘[t]hey don't know what they're doing.’ ” R.R. at 234a.

Romanick admitted during his testimony of having disdain for the Supervisors and that he was disrespectful to them at times. He further admitted that the Supervisors terminated his employment because of his disparagement of them, just as he would do, and did, to three officers under him, for the same reason. R.R. at 372a–375a.

Finding the testimony of Conville, Simchak, Carol Simchak, Forke and Romanick credible, the Hearing Officer found that the testimony supported both the neglect of duty/incompetence charge and the inefficiency, neglect, intemperance, disobedience of orders or conduct unbecoming an officer charge. The Hearing Officer specifically found clear and convincing evidence of neglect of duty/incompetence because the Township establishedthat Romanick failed to provide the Supervisors with regular, complete and accurate inventories of the contents of the evidence room in the police station; that he purchased an assault rifle on behalf of the police department, without proper prior approval of the Supervisors; and that he failed to discipline or reprimand an officer who had argued in a profane and disrespectful manner with one of the Supervisors.

Concerning the inefficiency, neglect, intemperance, disobedience of orders or conduct unbecoming an officer charge, the Hearing Officer concluded that the Township established by clear and convincing evidence that Romanick frequently made derogatory comments about one or more members of the Supervisors and specifically threatened to cause physical harm to Supervisor Simchak; frequently argued with and used profanity in his communication with the Supervisors, including specific incidents which occurred on or about March 28, 2007, and January 4, 2009; and that his behavior during his service as chief of police constituted a continuing pattern of improper and disrespectful treatment of Township employees and Supervisors.

The Supervisors adopted the Hearing Officer's decision and Romanick appealed to the trial court contending that several of the Hearing Officer's findings were not supported by substantial evidence and that his conclusions contained errors of law. Finding that the Hearing Officer's findings of fact and conclusions of law were supported by clear and convincing evidence, the trial court affirmed the Supervisors' decision.³

On appeal, Romanick contends that both the procedure used to remove him as police chief was flawed and that there was not substantial evidence to support his removal as police chief. We will address the procedural issues first.

I.

A.

Romanick initially contends that the Township should be estopped from arguing that he quit his position as police chief because substantial evidence shows that he was removed from his position as police chief and did not quit. We do not understand his argument. Everyone agrees that he was removed. Supervisors Simchak and Shawn Gilbert (Gilbert) testified at the hearing that on January 4, 2009, before the reorganization meeting, Romanick was advised that he would not be appointedas police chief the following year. R.R. at 107a, 204a. For purposes of the Tenure Act, demotion and removal are treated the same. While there were findings by the Hearing Officer that the Township was not foreclosed from asserting that Romanick voluntarily quit his employment and that Romanick abandoned his employment, those findings are irrelevant because the Hearing Officer specifically found as fact that “Romanick was demoted to the position of patrolman and/or terminated from his position as Chief of the [Township] Police Department” and held that the Tenure Act applies to this case. Id. at 28a, 38a. Because Romanick was removed, he was entitled to a hearing which he received.

B.

Romanick then argues that the Township failed to comply with the Tenure Act because, under the Tenure Act, when an individual is sought to be reduced in rank or removed from employment, the township must provide him a written Statement of Charges within five days of a reduction in rank or removal and a hearing before the appointing authority within ten days of a request for the same. Romanick avers that a Statement of Charges was not provided within five days of...