Guthrie v. Borough of Wilkinsburg

LARSEN, Justice,

dissenting.

I agree with the majority’s conclusion that the letters at issue in this case constituted final orders within the meaning of 2 Pa.C.S.A. § 101. I disagree with the majority, however, that “[t]he interest appellants are attempting to protect is an intangible one,” and that appellants’ property rights in this case are merely “remote, future, indirect or *261 speculative.” (At 257). I would hold that the letters placed in appellants’ personnel files affected appellants’ interest in their jobs; that those letters constituted an adjudication within the meaning of 2 Pa.C.S.A. § 101; and that this case was properly before the court of common pleas pursuant to the Local Agency Law, 2 Pa.C.S.A. § 752. Accordingly, I dissent.

It is clear in this case that appellants have an enforceable property interest in their continued employment as police officers. (At 256). I would go further and hold that, at least under the Local Agency Law, they also have a legitimate expectation that their continued employment not be arbitrarily undermined by unproven allegations of misconduct placed in their personnel files. 1

There is no question that a written warning or reprimand placed in a police officer’s personnel file will have an adverse effect upon the quality of his continued employment. Such a letter will be reviewed whenever questions concerning promotion, duty assignment, or job reclassification arise; these questions are sure to arise, and when they do, a warning or reprimand will adversely affect an officer’s chances of obtaining promotions and special privileges, such as assignments to special police schools, which a police officer may request in order to enhance his knowledge and further his career. In addition, for at least five of the officers involved in this case, there is no assurance that the letters will ever be removed from their files, no matter how exemplary their behavior is in the future. Thus, even *262 assuming that the warnings or reprimands were warranted at the outset, the letters will continue to adversely affect the officers’ job status for an indefinite period of time.

In view of these realities, I think it is clear that the negative effects of the letters placed in appellants’ files are anything but intangible, remote or speculative. I would hold, therefore, that the placement of the warnings and reprimands in appellants’ personnel files constituted an adjudication — a final order affecting their property rights— within the meaning of 2 Pa.C.S.A. § 101.

I also feel it necessary to note that the policy reasons cited by the majority in support of its conclusions are wholly without logic. The majority states that “[pjublic employers require reasonable freedom to quickly sanction their employees when they do wrong ____” (At 259).

Yet appellee’s own conduct belies any overriding need for speed in this case. The letters which are the subject of this case were not issued to appellants until after appellee had held thirteen meetings to interview citizens and additional meetings to interview twenty-two police officers. This investigation lasted from November, 1978 through June, 1979, and the report of the investigation was not submitted to the borough council for its consideration until December, 1979.

Further, there is no way for a public employer to know whether the employees it is sanctioning have done anything wrong, unless it first affords them a hearing.

Indeed, it “has long been recognized that ‘fairness can rarely be obtained by secret, one-sided determinations of facts decisive of rights____’” Fuentes v. Shevin, 407 U.S. 67, 81 , 92 S.Ct. 1983, 1994 , 32 L.Ed.2d 556 (1972), quoting Joint Anti-Fascist Refugee Committee v. McGrath, supra, 341 U.S. at 170, 71 S.Ct. at 647.

Allegheny Ludlum Steel Corporation v. Pennsylvania Public Utility Commission, 501 Pa. 71, 80 , 459 A.2d 1218, 1222 (1983) (Larsen, J., dissenting). See also Sterling v. Commonwealth Department of Environmental Resources, 504 Pa. 7, 17 , 470 A.2d 101, 106 (1983) (Larsen, *263 J., opinion in support of reversal) (“there is no way anyone can determine whether instituting disciplinary measures against appellant will promote greater efficiency and economy at DER until it has been proven that appellant has actually engaged in conduct detrimental to the agency. Administrative and judicial inquiry into the allegations against appellant would not be nearly as disruptive as would unfounded allegations of misconduct and disciplinary sanctions leveled at undeserving employes____”).

Finally, the majority views appellants’ ability to place counter-statements in their files as “genuine recourse to protect [their] reputation[s].” At 260. I cannot agree. Such counter-statements would only invite each superior who subsequently looks into the employee’s personnel file to judge for himself just where the truth lies. I think that appellants should be afforded the certainty of a single judgment, rendered by an impartial arbiter after a hearing, rather than having to be judged anew each time their employment status is considered.

I would reverse the order of the Commonwealth Court and remand this case to the court of common pleas for further proceedings under the Local Agency Law.

. In defining those property interests which are protected by the United States Constitution, the United States Supreme Court has held that

[t]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.

Board of Regents v. Roth, 408 U.S. 564, 577 , 92 S.Ct. 2701, 2709 , 33 L.Ed.2d 548 (1972) (emphasis added).