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BANKS v. BOARD COMMISSIONERS UPPER MORELAND TOWNSHIP (01/16/73)

decided: January 16, 1973.

BANKS
v.
BOARD OF COMMISSIONERS OF UPPER MORELAND TOWNSHIP



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of In Re: Appeal of William Banks from the Order of Civil Service Commission, No. 71-10471.

COUNSEL

James R. Caiola, with him Caiola & Caiola, for appellant.

Gilbert P. High, Jr., with him High, Swartz, Roberts & Seidel, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt. Concurring Opinion by Judge Kramer.

Author: Blatt

[ 7 Pa. Commw. Page 395]

William Banks (Banks) was the Chief of Police of Upper Moreland Township (Township) when, on November 10, 1970, the Township Commissioners approved a motion to remove him as Chief of Police and also to dismiss him from the police force. Banks was charged with inefficiency, neglect and intemperance in performance of his duties and with conduct unbecoming an officer. Specifically he was accused of harassment, favoritism, neglect of official duty and causing low morale on the force. Banks filed an appeal with the Upper Moreland Township Civil Service Commission (Commission) which, following a hearing, found that the charges against Banks constituted sufficient grounds for removing him from the force. Because of his eighteen years service, however, the Commission ordered that his punishment be reduced to a ten month suspension and a reduction to the rank of lieutenant. Banks appealed this decision to the Court of Common Pleas of Montgomery County, which affirmed the Commission's findings but held that the Commission had made an error of law in reducing the penalty. The lower court held that, once the Commission found support in the evidence for the penalty imposed by the Township, it had no discretion to alter the penalty.

The evidence presented to the Commission indicated that when Banks was appointed Chief of Police a schism existed between two factions on the force, one faction supporting the previous chief and the other faction supporting Banks. There was testimony, which the Commission chose to believe, that Banks had proceeded to aggravate this split. There was also testimony that Banks had unfairly harassed those policemen

[ 7 Pa. Commw. Page 396]

    whom he did not consider to be his friends, in an apparent attempt to induce their resignation from the force. A number of such resignations did occur. It was also testified that Banks gave job preference to and repeatedly favored a few officers who were friend-liest toward him, such favoritism allegedly being shown without regard to its bad effect on department efficiency and morale. Lastly, it was testified, and the Commission found, that Banks did little to increase the competency of the officers on the force and even discouraged some of them from making certain vice checks.

An impressive number of seemingly competent witnesses was presented for each side, and we might or might not have agreed with the Commission on evaluating this contradicting testimony had we heard it directly. It is not our duty, however, to decide the credibility of witnesses who appeared before the Commission. This is for the Commission to decide and when, as here, the court below took no additional testimony and received no additional evidence on the merits, our scope of review is merely to determine whether or not the Commission abused its discretion or committed an error of law. Shannon v. Civil Service Commission, 4 Pa. Commonwealth Ct. 492, 287 A.2d 858 (1972).

The charges against Banks were clearly those permitted by § 644 of the First Class Township Code, Act of June 24, 1931, P.L. 1206, as amended, 53 P.S. § 55644. It is his contention, however, that even if all of the accusations against him are considered true, they do not amount to such "inefficiency, neglect, intemperance . . . or conduct unbecoming an officer" so as to warrant the penalty imposed. It is his further contention that an officer cannot be dismissed unless he has been guilty of moral turpitude, flagrant public misbehavior, or direct violation of public law. With this broad statement we cannot agree.

[ 7 Pa. Commw. Page 397]

The term "unbecoming conduct" has been considered in Zeber Appeal, 398 Pa. 35, 43, 156 A.2d 821, 825 (1959), and the statement made therein was adopted by this Court in Kramer v. City of Bethlehem, 5 Pa. ...


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