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April 18, 1979

William O. SHUMAN, Jr.
CITY OF PHILADELPHIA, Honorable Frank Rizzo, Mayor, City of Philadelphia, Honorable Hillel Levinson, Managing Director, City of Philadelphia, Honorable Joseph O'Neill, Police Commissioner, City of Philadelphia, Staff Inspector, John Clark and Staff Inspector, Howard Schultz, Police Department, Honorable Louis Taylor, Personnel Director, City of Philadelphia, Honorable George Bucher, Harrison J. Trapp, Leonard L. Ettinger, Civil Service Commissioners, City of Philadelphia, and the Civil Service Commission, City of Philadelphia, Individually and in their official capacities

The opinion of the court was delivered by: HUYETT


Plaintiff William O. Shuman was dismissed from his employment with the Philadelphia Police Department on May 15, 1975. He brought this action pursuant to 42 U.S.C. § 1983 seeking reinstatement, backpay, and other declaratory and injunctive relief, on the grounds that his dismissal was a violation of his rights under the First, Fourth, and Fourteenth Amendments to the Constitution. *fn1" Jurisdiction of this court is founded on 28 U.S.C. §§ 1343 and 2201. Following a trial held non-jury, we make the following Findings of Fact and Conclusions of Law. *fn2"

 In late 1974, the plaintiff and his wife Rona Shuman decided to separate and eventually to file for divorce. The actual separation took place in mid-January of 1975. (N.T. 8-11; 15) Plaintiff had in the meantime become romantically involved with eighteen year old Donna Rosenbaum, a fellow student at Temple University. *fn3" On or about January 16, 1975, Ms. Rosenbaum *fn4" secretly left her home, where she had been living with her parents, and went to live at plaintiff's father's house at 3538 Calumet Street in Philadelphia, where plaintiff was living at the time. (N.T. 17, 80) Several weeks later, Ms. Rosenbaum went to live at the residence of plaintiff's mother at 7592 Germantown Avenue in Philadelphia.

 Donna Rosenbaum's mother Mrs. Berta Rosenbaum, was upset that her daughter had left home. In early January, 1975, Mrs. Rosenbaum made a telephone complaint to the Police Department, stating that her daughter had left her parents' home and was living with plaintiff. On January 23, 1975, Mrs. Rosenbaum made a complaint to the Internal Affairs Bureau of the Philadelphia Police Department. (Stipulations P 8, 9) Staff Inspector John Clark was assigned to investigate the complaint. After a brief informal, discussion with plaintiff in which plaintiff stated that Ms. Rosenbaum was not living with him, Clark closed the investigation. (N.T. 118-119)

 Mrs. Rosenbaum, however, persevered. On February 20, 1975, she wrote a letter to Police Commissioner Joseph O'Neill stating that she and her husband wished to continue to "press charges" against plaintiff since their daughter had not returned home. Within the next month, Mrs. Rosenbaum wrote three more letters on the same subject. (Stipulation PP 11-12; Court Exhib. No. 1 B, C, D) The general message conveyed by these letters was that, because of the plaintiff's actions, Mrs. Rosenbaum had lost all respect for the Philadelphia Police Department and that she would not regain respect until Commissioner O'Neill had "taken care of" this situation. Following receipt of the letters, the investigation of plaintiff was resumed. (Stipulation P 13)

 The Internal Affairs Bureau, under the direction of Staff Inspector Clark, commenced twenty-four hour surveillance of Shuman and Donna Rosenbaum. Surveillance continued from the end of February, 1975, until early April, 1975, for approximately forty to forty-five days. The surveillance allegedly revealed that plaintiff and Ms. Rosenbaum were observed entering the premises at 3538 Calumet and 5104 Germantown Avenue *fn5" at various times of the day, and that they were observed on occasion entering these residences at night and coming out together in the morning. (Stipulation No. 20)

 As a result of the continuing complaints of Mrs. Rosenbaum and the outcome of the surveillance, the plaintiff was again notified that he would be questioned about his relationship with Donna Rosenbaum by the Staff Inspector's office. Plaintiff and his lawyer met with Staff Inspector Clark in mid-April and discussed the situation. At that time no formal statement was taken, but the parties informally discussed the nature of the investigation. (N.T. 122-23) Staff Inspector Clark informed the plaintiff and his attorney that the investigation was an official police investigation, and that failure to answer questions propounded in such an investigation were grounds for dismissal under § 10-110 of the Philadelphia Home Rule Charter. That section reads as follows:

Section 10-110. Refusal to Testify. If any officer or employee of the City shall wilfully refuse or fail to appear before any court, or before the Council or any committee thereof, or before any officer, department, board, commission or body authorized to conduct any hearing or inquiry, or having appeared, shall refuse to testify or to answer any question relating to the affairs or government of the City or the conduct of any City officer or employee on the ground that his testimony or answers would tend to incriminate him, or shall refuse to waive immunity from prosecution on account of any matter about which he may be asked to testify before such court or at any such hearing or inquiry, he shall forfeit his office or position, and shall not be eligible thereafter for appointment to any position in the City service.

 Following that discussion, the parties agreed that an official interview would be held on April 22, 1975, at which time a formal statement would be taken from plaintiff.

 At the April 22 meeting, an official statement was taken and transcribed. Staff Inspector Clark informed the plaintiff that:

This is an official departmental investigation and under the provisions of the Philadelphia Home Rule Charter, section 10-110, you are required to cooperate fully and answer all questions. We are questioning you concerning a complaint made by Mrs. Berta Rosenbaum.

 (Stipulation P 26) Later during the questioning, plaintiff was asked if he lived with anyone at 5104 Germantown Avenue. After being informed that this line of questioning concerned his off-duty personal life, plaintiff's lawyer stated:

Inspector, it is the position of Patrolman Shuman and the Fraternal Order of Police that the Department has no right under the City Charter or any other regulation or Ordinance or state law to inquire into the personal life of Patrolman Shuman or any other policeman and therefore, Patrolman Shuman, of his own free will, has decided to refuse to answer any questions concerning any complaint having to do with his personal life.

 In response to further questioning, plaintiff maintained that the Staff Inspector had "no right under the City Charter to inquire into my personal life as long as it does not involve the performance of my duty as a police officer." (Exhibit "E" to the Stipulations)

 On April 22, 1975, plaintiff was called back to the Staff Inspectors' office and given a chance to reconsider his decision not to give a statement. He continued to refuse to do so. That same date, charges were filed against the plaintiff and he was suspended from the police department without pay. On May 5, 1975, plaintiff received a Notice of Intention to Dismiss. The stated reasons for the dismissal were as follows:

On April 22, 1975, you refused to answer questions in an official departmental investigation into this matter in violation of Section 10-110 of the Philadelphia Home Rule Charter.
The above actions indicate that you have little or no regard for your responsibility as a member of the Philadelphia Police Department.

 (Exhibit "I" to Stipulations) On May 15, 1978, plaintiff was dismissed for the above stated reasons. (Stipulation PP 30-31)

 Several major areas of factual dispute have emerged from this case. One involves the proper interpretation of § 10-110 of the City Charter. Since plaintiff refused to answer the questions propounded to him because he believed that the instant investigation wrongfully infringed upon his personal life, § 10-110 on its face does not appear to be directly applicable. That section only applies to refusals to answer based upon Fifth Amendment rights. Plaintiff here refused for other reasons to respond to questions propounded to him. However, separate and apart from the rule stated in § 10-110, we find as a fact that there was a longstanding, well-known policy within the Police Department to require, at penalty of losing one's job, that police officers answer any questions asked during an official investigation, irrespective of the reasons advanced for the failure to respond. Commissioner O'Neill testified that it was a long-standing policy throughout his tenure in the Police Department to require officers to give statements in departmental investigations. Furthermore, Staff Inspector Clark testified that this "policy" was common knowledge within the Police Department, and was part of the curriculum at the Police Academy. (N.T. 124; 2-9)

 We further find as fact that there were no limits placed upon the matters which could be inquired into during an official investigation. See Stipulation P 24. As Staff Inspector Clark put it, his function was "to investigate complaints at the pleasure of the police commissioner." (N.T. 116) Police Commissioner O'Neill also testified that it was traditionally the responsibility of the police commissioner to decide what matters would be the subject of official investigations. (N.T. 2-5) No limits or guidelines on official investigations have ever been established, either through official documents or by testimony given at trial. In particular, we find that the scope of "official investigations" was not limited to the kinds of offenses which are grounds for disciplinary action, as those grounds are set forth in the Police Duty Manual. The Duty Manual lists several specific charges which constitute "Conduct Unbecoming an Officer." The testimony at trial revealed that plaintiff was investigated for possible violation of the regulation prohibiting involvement in "crimes of moral turpitude." Adultery has not been a crime in Pennsylvania since the enactment of the Crimes Code, Act of December 6, 1972, No. 334, effective June 6, 1973. Therefore, adulterous behavior is not a "Crime of moral turpitude," and does not violate any express regulations of the Police Department. *fn6" Nevertheless, the testimony at trial revealed that such conduct was the subject of routine investigation by the Department. (N.T. 2-13 through 2-15)

 Similarly, any conduct deemed to be an "Act of moral turpitude" has regularly been subject to investigation, even where the conduct occurs while an officer is off-duty. (N.T. 197-199) Exactly what constitutes an "act of moral turpitude" is not defined anywhere, and we find as a fact that whether or not an act is deemed "immoral", and thus subject to official investigation, largely depends upon the personal standards of the particular police commissioner. In the words of Staff Inspector Clark, ". . . the morals are dictated by the Police Commissioner." (N.T. 144)

 A second area of factual dispute concerns the exact cause for plaintiff's dismissal. Defendants have argued throughout that the sole reason for the plaintiff's dismissal was his failure to answer the questions propounded to him during the official investigation. Plaintiff, on the other hand, submits that he was dismissed for his allegedly adulterous behavior. Although two reasons are given on the plaintiff's notice of dismissal, we find as a fact that the only reason for his dismissal was plaintiff's failure to answer questions asked at an official investigation. At the time plaintiff gave his statement, the investigation was in its beginning stages. There simply would have been no basis to dismiss plaintiff on substantive grounds at that point. (N.T. 2-12) However, his refusal to answer the questions stymied the investigation, and, on that basis, the decision to dismiss was made.

 Finally, we find that defendants Clark and O'Neill acted at all times in good faith, without any specific intent to deprive the plaintiff of his constitutional rights, and did not in fact believe that their actions deprived plaintiff of those rights. There was no evidence that their acts were done with any malicious intention to harass or cause injury to the plaintiff. Rather, these defendants were proceeding in a routine ...

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