Benvignati v. Civil Service Commission
Benvignati v. Civil Service Commission
Opinion of the Court
Opinion by
In ,this. civil service, case, Appellant, Louis W. Benvignati, appeals here an order of the Court of Common Pleas of Philadelphia County dismissing his appeal from a decision of the Philadelphia Civil Service Com1 mission (Commission). The Commissions decision upheld his dismissal from the Philadelphia Police Department. We affirm.
Appellant was discharged from the Philadelphia Police Department for conduct unbecoming an officer. The circumstances surrounding his discharge pertain to his performance with the Organized Crime Unit. There, he met a Corporal Charles Worrell and an Officer Thomas Liciardello who informed him that they had obtained information that illegal gambling was taking place at the residence of a Victor DeLuca.. They further told Appellant that they had personally performed the surveillance of the premises that confirmed this information. Corporal Worrell and Officer Liciardello then directed Appellant to type out a search warrant, under his own name, for a search of DeLucas residence. The warrant contained an affidavit by Appellant where
The Commission expressly stated that it found no mitigating circumstances to excuse Appellant’s conduct and that there was just cause for his disihissal. On appeal, the common pleas court reviewed the evidence that was before the Commission and stated that Appellant’s course of conduct in executing the search warrant and affidavit was conduct unbecoming an officer and that there was just cause for his dismissal.
In this appeal, Appellant contends that (1) the Commission erred as á matter of láw in concluding that his actions constituted conduct unbecoming an officer; (2) the Commission failed to consider his service record when it assigned the penalty of dismissal; and (3) the police department failed to sustain its burden of proving that the penalty of dismissal was appropriate. We
Section 7.7-303 of the Philadelphia Home Rule Charter, 351 Pa. Code §7.7-303, provides that a civil service employee of the City of Philadelphia shall be dismissed only for just cause. “Just cause” was thoroughly discussed and defined in O’Gorman Appeal, 409 Pa. 571, 187 A.2d 581 (1963), wherein our Supreme Court stated:
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 that 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 only 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.
Id. at 576-577, 187 A.2d at 583-584, citing Thomas v. Connell, 264 Pa. 242, 246, 107 A. 691, 692 (1919). Con
The facts in this case are undisputed and, in our view, establish a course of conduct on Appellants part that provides just cause for his dismissal. We have previously held in the context of a civil service dismissal that a public employee cannot use as a defense to his other dismissal their obedience of a superiors order. In Geissler v. Board of Commissioners of Upper Dublin Township, 76 Pa. Commonwealth Ct. 426, 463 A.2d 1284 (1983), we upheld the dismissal of a township financial director where the procedure employed by her to pay for office furniture bought for the Township was perceived to have been designed to avoid the statutory requirement of soliciting bids. In rejecting Mrs. Geissler s attempt to justify her actions on the basis of her following the instructions of the township manager, we held that a public employee cannot blindly follow a supervisors order that the employee knows or has reason to know violates the law. Id. at 431, 463 A.2d at 1287. Quite naturally, when one who is in a position of public trust knowingly and intentionally violates the law, such conduct is grounds for dismissal. Id. at 430, 463 A.2d at 1287.
The circumstances presented in this case are strikingly similar to those in Geissler. In Geissler, there is no dispute that the actions of Mrs. Geissler were clearly illegal and that she was aware of their illegality. This was undeniably evidenced by Mrs. Geisslers statement to the township police chief that the furniture purchases were designed to “keep the Commissioners out of it.” 76 Pa. Commonwealth Ct. at 431, 463 A.2d at 1287. Here, while the Appellant may have believed the information provided him by Worrell and Liciardello was true, he knew at the time he signed the warrant .that he did not
Appellant also contends that the penalty of discharge was harsh and excessive in light of his service record and the facts and circumstances of this case. The case law . is well-established that once it has determined that a public employee has been removed for just cause, the court does not have the power to alter the decision of the appointing authority as to the disciplinary action involved. Doerr v. Pennsylvania Liquor Control Board, 88 Pa. Commonwealth Ct. 610, 491 A.2d 299 (1985), petition for allowance of appeal denied, No. 311 W.D. Allocatur Dkt. 1985 (Pa. filed December 10, 1985); Hoffman v. Department of Health, 73 Pa. Commonwealth Ct. 284, 458 A.2d 303 (1983); Omelchenko v. Housing Authority of County of Lebanon, 58 Pa. Commonwealth Ct. 494, 428 A.2d 274 (1981). Once this court determined that Appellant was properly dismissed for just cause, we were without power to modify the sanction imposed by the police department.
In view of the foregoing, we shall affirm the common pleas court’s order dismissing Appellant’s appeal.
Order
Now, June 19, 1987, the order of the Court of Common Pleas of Philadelphia County at Docket No. 777 April Term 1985, dated February 5, 1986, is hereby affirmed.
Concurring Opinion
Concurring Opinion by
I concur in the result only because I believe, under these circumstances, this Court is constrained to follow prior case law.
However, it is fundamentally unjust to place a policeman in the position of Officer Benvignati, who was on temporary assignment to the Organized Crime Unit and who was advised by regular officers of that unit that signing out a warrant in this manner was “standard operating procedure.”
In a police force—which rightly places a premium on chain of command and obedience to superior officers—if a policeman does not follow orders, he faces mistreatment by those superiors and his colleagues. If he does obey an order and an error in the affidavit is discovered, it is he who takes the fall. This places officers such as Benvignati in completely untenable positions, forcing them to choose between the proverbial “rock and a hard place,” knowing that their judgments, however faulty, may be second-guessed.
Reference
- Full Case Name
- Louis W. Benvignati, Appellant v. Civil Service Commission, Appellee
- Cited By
- 17 cases
- Status
- Published