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JAMES M. MORGAN AND CHARLES W. KNOER v. COMMONWEALTH PENNSYLVANIA (06/12/79)

decided: June 12, 1979.

JAMES M. MORGAN AND CHARLES W. KNOER, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA STATE POLICE, RESPONDENT



Appeal from the Order of the Pennsylvania State Police Department Disciplinary Board in case of Appeal of James M. Morgan and Charles W. Knoer, dated April 29, 1978.

COUNSEL

Vincent C. Murovich, for petitioner.

John L. Heaton, Assistant Attorney General, Chief Counsel, for respondent.

President Judge Bowman and Judges Wilkinson, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 43 Pa. Commw. Page 346]

Corporal James M. Morgan and Trooper Charles W. Knoer (appellants), of the Pennsylvania State Police, have appealed from 5-day suspensions imposed by a disciplinary board for violations of the State Police Field Regulations (F.R.). We affirm.

"Second level" disciplinary charges were brought against appellants in September 1977, alleging violations of the regulations regarding the consumption of alcohol while off duty. The maximum possible penalty for a second-level offense is a 30-day suspension. F.R. 3-3, § 3.06(B). The charges were heard by a disciplinary board which imposed a 5-day suspension on each appellant. This action was approved and made final by the department disciplinary officer, and this appeal follows.

Appellants contend they were denied due process by the regulation which prohibits the active participation of counsel at second-level disciplinary hearings except in the discretion of the chairman of the disciplinary

[ 43 Pa. Commw. Page 347]

    board. F.R. 3-3, § 3.07(B)(1)(f). We cannot agree that due process requires counsel to be allowed to participate at all second-level disciplinary hearings.*fn1

"[T]he interpretation and application of the Due Process Clause are intensely practical matters and . . . '[t]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.'" Goss v. Lopez, 419 U.S. 565, 577 (1975). In holding that there is no right to have counsel present during summary courts-martial, where a possible penalty is 30 days at hard labor, the United States Supreme Court made the following observations:

In short, presence of counsel will turn a brief, informal hearing which may be quickly convened and rapidly concluded into an attenuated proceeding which consumes the resources of the military to a degree which Congress could properly have felt to be beyond what is warranted by the relative insignificance of the offenses being tried. Such a lengthy proceeding is a particular burden to the Armed Forces because virtually all the participants . . . are members of the military ...


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