Appeal from the Order of the Court of Common Pleas of Centre County in case of Lee W. Faust v. Police Civil Service Commission of Borough of State College, dated September 27, 1974.
Richard Kirschner, with him Neal Goldstein, and Markowitz & Kirschner, for appellant.
Robert K. Kistler, with him Miller, Kistler, Campbell, Mitinger & Beik, for appellee.
President Judge Bowman and Judges Kramer and Mencer, sitting as a panel of three. Opinion by Judge Kramer.
[ 22 Pa. Commw. Page 124]
This is an appeal filed by Lee W. Faust from an order of the Court of Common Pleas of Centre County sustaining his dismissal by the Police Civil Service Commission of Borough of State College. We affirm that order.
Faust was a nine-year veteran police officer of the Borough. At all times pertinent to this case, Faust was a married man living with his wife and two children. In February, 1973 "in connection with his police work," Faust met Sharon Bishop who, during all pertinent times, was a married woman residing with her husband and child. During the next year Faust and Bishop met occasionally, and on April 26 or April 27, 1974, Faust took Bishop to a tavern in a nearby town, after which they returned to State College and engaged in sexual relations in a motel room. On June 28 or 29, 1974 they met at the
[ 22 Pa. Commw. Page 125]
same motel and used a room for the same purposes. On both occasions Faust had somehow obtained a key for the motel room, although the records of the motel did not indicate any registration by Faust. On one occasion between the two motel incidents, Faust took Bishop to a nearby public lake, where they again had relations.
On July 15, 1974, Faust was interviewed and counseled by a lieutenant of the Police Department who informed Faust of rumors concerning an affair between Faust and "a girl." The lieutenant specifically mentioned the rumored, unauthorized use of a Borough Councilman's swimming pool by Faust and "a girl." The lieutenant advised Faust that, if the rumors were correct, it was in his and the Department's best interest for Faust's association with the "girl" to cease. On that same date Faust called Bishop, and they mutually agreed to "cool it."
Three days later, on July 18, 1974, Faust telephoned Bishop, and, believing Bishop's husband would not return, they met in Bishop's residence. Bishop's two-year old son was present in the home at the time. Bishop's husband returned home and found Faust and Bishop together in the house. This was the first time Bishop's husband knew of the relationship. The Chief of Police received a phone call from the father of Bishop complaining about the situation. The Chief, after learning of the warning given just three days before, confronted Faust and Faust replied "I knew it would catch up with me sooner or later." The Chief delivered a written memorandum to the Borough Manager requesting a suspension of Faust and on the same day (July 19, 1974) the Borough Manager, acting under a delegation of powers from the Mayor, suspended Faust "pending further investigation until the next regular meeting of the Borough Council, which will be held Monday, August 5, 1974. The suspension is without pay." This letter stated that Faust was being charged with "an act of conduct unbecoming a police officer."
[ 22 Pa. Commw. Page 126]
On August 5, 1974, Borough Council met and directed the Borough Solicitor to prepare charges based upon facts presented by the Chief. On August 9, 1974, Faust was served with a statement of the charges deemed by Borough Council "to constitute immorality and conduct unbecoming an officer."*fn1 Faust requested a hearing before the Police Civil Service Commission, which was held August 14, 1974. The Borough presented the testimony of five witnesses, including Mrs. Bishop, who confirmed all of the above facts pertaining to her relationship with Faust. Faust did not testify, nor present any evidence or testimony in his defense. The Commission upheld the dismissal and Faust took an appeal to the ...