Salters v. Pennsylvania State Police Com'n

• Decision Date: 29 November 2006
• Citation: 912 A.2d 347
• Parties: Richard L. SALTERS, Petitioner v. PENNSYLVANIA STATE POLICE MUNICIPAL POLICE OFFICERS' EDUCATION AND TRAINING COMMISSION, Respondent.
• Court: Pennsylvania Commonwealth Court

912 A.2d 347

Richard L. SALTERS, Petitioner v. PENNSYLVANIA STATE POLICE MUNICIPAL POLICE OFFICERS' EDUCATION AND TRAINING COMMISSION, Respondent.

Commonwealth Court of Pennsylvania.

Submitted on Briefs October 17, 2006.

Decided November 29, 2006.

Carl Marcus, Pittsburgh, for petitioner.

Joanna N. Reynolds, Asst. Counsel and Barbara Christie, Chief Counsel, Harrisburg, for respondent.

BEFORE: FRIEDMAN, Judge, LEADBETTER, Judge, and LEAVITT, Judge.

OPINION BY Judge LEAVITT.

Richard L. Salters petitions for review of an adjudication of the Pennsylvania Municipal Police Officers' Education and Training Commission (Commission) revoking Salters' certification as a municipal police officer. The Commission found this certification had been issued in error because it relied, in part, upon a false statement Salters made on his certification application. The Commission held that the false statement alone supported a revocation. Agreeing with the Commission that Salters' misconduct was not justified by the fact that his supervisor advised him to lie, we affirm.

The facts in this appeal are not in dispute. Salters applied for a part-time police officer position with the Borough of Rankin Police Department. As part of his application for employment, Salters was required to undergo a psychological examination. 37 Pa.Code § 203.11(a)(7).¹ On August 28, 2003, Salters was evaluated by Paul M. Bernstein, Ph.D., a licensed psychologist, who determined that Salters was "a psychological risk" for the position of police officer. When the Chief of Police, Darryll L. Briston, learned about the unfavorable evaluation, he advised Salters to obtain another one. Salters did so and was then evaluated by Peter C. Zubritsky, Ph.D., also a licensed psychologist, who found no psychological impediment to Salters serving as a police officer. Reproduced Record at 8a. (R.R. ___). Salters was then hired by the Rankin Police Department.

On January 9, 2004, Salters completed an application for certification by the Commission.² With that application, Salters submitted the psychological evaluation of Dr. Zubritsky that found Salters to be psychologically fit. R.R. 6a-8a. The application questioned whether Salters had undergone "any other psychological evaluation in conjunction with an application for police employment within the past year?" R.R. 1a (emphasis added). Salters answered "no." Id. Salters signed the completed application, certifying that it contained "no misrepresentation or falsifications, omissions or concealment of material fact and that the information given [was] true and complete to the best of [his] knowledge and belief...." R.R. 3a.³ On March 11, 2004, the Commission issued a certification to Salters.

In 2005, the Commission received information that Salters had been evaluated by more than one psychologist in connection with his application for employment with the Rankin Police Department. After reviewing Dr. Bernstein's evaluation that Salters was "psychologically at risk," the Commission's Executive Director informed Salters in writing that the "Commission intends to take action to revoke your certification." R.R. 47a. The stated basis was the Commission's regulation authorizing the revocation of a certification for "[p]hysical or psychological impairment which renders the officer permanently unable to perform his duties." 37 Pa.Code § 203.14(a)(5). Salters was advised that he had a right to an administrative hearing before his certification could be revoked; Salters' other option was to return the certification.

Salters exercised his hearing right, which prompted the Commission to issue a second notice on September 29, 2005, to add two additional bases for its intended revocation. First, the amended notice alleged that Salters submitted "to the Commission a document that the police officer knows contains false information including [a] fraudulent application" in violation of 34 Pa.Code § 203.14(a)(7). Second, it alleged that because the Commission had issued Salters his "certification in error," the certification could be revoked pursuant to 34 Pa.Code § 203.14(a)(7) and (a)(8).

On November 8, 2005, a hearing was convened on the matter of whether Salters' certification should be revoked. The hearing officer announced that it was her responsibility to hear the evidence and present a proposed report to the Commission for its consideration. The hearing officer explained that the Commissioners would make the final decision in the case.⁴ Supplemental Reproduced Record at 3b (S.R.R.___).

The Commission presented the testimony of Dr. Bernstein, who explained the basis for his "at risk" psychological evaluation of Salters. Beverly Young, an administrative officer, also testified for the Commission and stated that the Commission would not certify an individual found to present a psychological risk. Salters, represented by counsel, testified that he was pressured by Police Chief Briston into completing and signing the application with the inaccurate statement. He explained, further, that Briston had also signed the application and was the individual who had actually submitted Salters' certification application to the Commission.

At the conclusion of the hearing, the hearing officer issued her proposed report. She found that the Commission could not revoke Salters' certification for "[p]hysical or psychological impairment that renders the officer permanently unable to perform his duties." 37 Pa.Code § 203.14(a)(5). She reached this conclusion because Dr. Bernstein did not find that Salters was permanently impaired. On the other hand, the hearing officer found that the Commission could revoke Salters' certification under the two regulations cited in the September 29, 2005, notice, i.e., the fraudulent application and certification issued in error. Salters filed exceptions with the Commission, but the Commission adopted the hearing officer's proposed findings of fact and conclusions of law and ordered the revocation of Salters' certification. Salters then petitioned for this Court's review of the Commission's adjudication.

On appeal,⁵ Salters presents five issues for our consideration, which have been reordered and consolidated for purposes of our analysis. First, he contends his due process rights were violated because the Commission amended its revocation notice to add two other charges after Salters exercised his right to a hearing. Second he contends that the Commission's findings relevant to the regulations cited in the September 29, 2005, notice are not supported by substantial evidence. Third, Salters contends that he did not receive a "meaningful review" from the Commission because only one of its twenty members has been trained in the law. Fourth, he contends the Commission's revocation was based on a theory of conspiracy or accomplice liability, but the regulations do not authorize revocation for that reason.

We consider, first, Salters' argument that he was denied due process of law. The sine qua non of due process is "notice and opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case before a tribunal having jurisdiction of the cause." Fiore v. Board of Finance and Revenue, 534 Pa. 511, 517, 633 A.2d 1111, 1114 (1993) (citations omitted). More precisely, the notice must inform the respondent of the charges against him with enough certainty that he may prepare a defense. Department of Transportation v. Sutton, 541 Pa. 35, 41, 660 A.2d 46, 48-49 (1995). Salters argues that because the Commission added two charges after he requested a hearing, he was denied due process. In making this argument, Salters relies entirely upon In Re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968).

Ruffalo was a federal disbarment case that was instituted after the attorney in question, John Ruffalo, was disbarred by the Ohio Supreme Court. The United States Supreme Court set aside the federal disbarment because it had been based upon the state disbarment, and the Supreme Court found the state proceeding to be defective under due process. Ruffalo was charged with immoral and unethical conduct, i.e., hiring a railroad employee, Michael Orlando, to solicit persons injured in railroad accidents to become clients of Ruffalo. Ruffalo and Orlando each testified that Orlando did not solicit clients but, rather, served as an accident investigator for Ruffalo. As a result of this testimony, the charges were amended to cite Ruffalo for the immoral and unethical conduct of hiring a railroad employee to investigate accidents that, on occasion, involved his own employer. Ruffalo was disbarred as a result of the additional charge. However, the Supreme Court concluded that it violated due process to lodge this additional charge, explaining as follows:

The charge must be known before the proceedings commence. They become a trap when, after they are underway, the charges are amended on the basis of testimony of the accused. He can then be given no opportunity to expunge the earlier statements and start afresh.

Id. at 551, 88 S.Ct. 1222.

Salters' hearing was governed by the General Rules of Administrative Practice and Procedure, 1 Pa.Code §§ 35.1-35.251.⁶ Under these rules, pleadings may be amended up to five days before a hearing starts without approval and later, if directed by the presiding officer. 1 Pa.Code § 35.48⁷ However, issues addressed at a hearing with the express or implied consent of the parties "shall be treated as if they had been raised in the pleadings." 1 Pa.Code § 35.49. On the other hand, if evidence "is objected to on the ground that it is not raised by the pleadings," the hearing officer may allow the evidence to be received and the pleading amended if it will not prejudice "the public interest or the rights of any participant." 1 Pa.Code § 35.49(a). The presiding officer may grant a continuance to allow the "objecting participant to meet the new issues and evidence." I...