No. 491 January Term, 1979, Appeal from the Order of the Commonwealth Court, Docketed to 1175 and 1992 C.D. 1977, dated June 5, 1979, 43 Pa. Commonwealth Ct. 226,
O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. McDermott, J., concurs in the result. Roberts, J., files a concurring opinion joined by O'Brien, C.j., and Hutchinson, J.
This is an appeal from an order of the Commonwealth Court affirming the action of the State Police Commissioner in accepting the recommendation of dismissal of appellant entered by the Court Martial Board of the Pennsylvania State Police. Soja v. Pennsylvania State Police, 43 Pa. Commonwealth Ct. 226, 402 A.2d 281 (1979). A number of objections have been raised by appellant challenging his dismissal. We granted review to address the question as to whether the procedures employed in the decision-making process violated his constitutional rights to procedural due process and a fair hearing. Specifically, appellant alleges that the requirement that all preliminary investigations, reports and recommendations be forwarded to the Commissioner
prior to the institution of the process, conflicts with the Commissioner's primary role in the adjudicatory process of accepting or rejecting the Court Martial Board's (Board) recommendation of dismissal. See, State Police Operations Manual 7-2, p. 23.4, paragraph (E)2a.*fn1
The essence of the due process complaint is that in view of the Commissioner's ultimate role as the final arbiter, it is improper for him to have available information which may not have been contained on the record upon which the recommendation of dismissal was predicated. It is suggested that such a procedure possesses the potential of depriving the accused trooper of a meaningful right of confrontation and adequate review. For the reasons that follow, we find that this argument has substance and find the procedure defective.
The principle that due process is fully applicable to adjudicative hearings involving substantial property rights before administrative tribunals is well established. Conestoga Nat'l Bank of Lancaster v. Patterson, 442 Pa. 289, 275 A.2d 6 (1971); Wiley v. Woods, 393 Pa. 341, 141 A.2d 844 (1958); Commonwealth ex rel. Chidsey v. Mallen, 360 Pa. 606, 63 A.2d 49 (1949); Pennsylvania State Athletic Comm. v. Bratton, 177 Pa. Super.Ct. 598, 112 A.2d 422 (1955). There is also little question that a member of the Pennsylvania State Police possesses an enforceable property right in his continued employment with the force. See, e.g., Bolden v. Pa. State Police, 371 F.Supp. 1096 (E.D.Pa. 1974); Lamolinara v. Barger, 30 Pa. Commonwealth Ct. 307, 373 A.2d 788 (1977); cf. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).
The prerequisites of due process have been frequently articulated:
[The] essential elements [of due process] are 'notice and opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case before a tribunal having jurisdiction of the cause': 12 Am.Jur. § 573, pp. 267, 268; Com. ex rel. Chidsey v. Keystone Mut. Cas. Co., 373 Pa. 105, 109, 95 A.2d 664; Carter v. Kubler, 320 U.S. 243, 88 L.Ed. 26, 64 S.Ct. 1; Ohio Bell Telephone v. Public Utilities Commission of Ohio, 301 U.S. 292, 81 L.Ed. 1093, 57 S.Ct. 724; Interstate Commerce Commission v. Louisville & Nashville Ry. Co., 227 U.S. 88, 57 L.Ed. 431, 33 S.Ct. 185; Jordan v. American Eagle Fire Insurance Company [83 U.S.App.D.C. 192], 169 F.2d 281, 288. Conestoga Nat'l Bank of Lancaster v. Patterson, supra 442 Pa. at 295, 275 A.2d at 9.
Moreover, "[i]n almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses." Goldberg v. Kelly, 397 U.S. 254, 269, 90 S.Ct. 1011, 1021, 25 L.Ed.2d 287 (1970). The United States Supreme Court has stated:
Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice or jealousy. We had formalized these protections in the requirements of confrontation and cross examination. They have ancient roots.
Greene v. McElroy, 360 U.S. 474, 496, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377 (1959).
Not only is the right of confrontation impaired, but meaningful review is impossible where the reviewing court does not have available to it all of the facts considered in reaching the judgment. U.S. ex rel. Kinney v. U.S. Fidelity & Guaranty Co., 222 U.S. 283, 32 S.Ct. 101, 56 L.Ed. 200 (1911); Guthrie v. Wilson, 40 Pa. 430 (1861). Under Section 711 of the Administrative Code, it is clear that the recommendation of the Court Martial Board is merely advisory and the Commissioner "may, in his discretion, follow or disregard . . ." the Board's view. It is therefore clear that the Commissioner's role is that of the ultimate arbiter within the administrative process, not constrained by the findings of the Court Martial Board.
The present procedure which provides the Commissioner with information that may be prejudicial and inflammatory concerning the trooper is essentially unfair in two respects. First, if this information was not presented during the formal proceedings, the subject of the disciplinary action is denied the opportunity to contest its accuracy. Second, the tribunal reviewing the action by the Commissioner is left unaware of any such information that may have influenced the judgment.*fn2
The power of the Commissioner "to follow or disregard" recommendations as to the discipline to be imposed makes it critical that the factors which determine the exercise of that discretion by the Commissioner be made a part of the record.
The mere fact that the record may support the recommendation of the Board is of no moment where the Commissioner's reasons for exercising his discretion in accepting or refusing the recommendation need not have been predicated upon the facts appearing upon the record before the Board. The result of the present scheme of discipline provides the possibility that information critical in the judgment of the Commissioner in the exercise of this discretion is insulated from refutation by the trooper and escapes consideration by a reviewing court.
When an administrative decision is based upon information secretly collected and not disclosed, due process concerns are clearly raised. See, e.g., United States v. Abilene & S. Ry. Co., 265 U.S. 274, 44 S.Ct. 565, 68 L.Ed. 1016 (1923); Shortz v. Farrell, 327 Pa. 81, 193 A. 20 (1937); Erie City v. Public Service Comm., 278 Pa. 512, 123 A. 471 (1924); Shenandoah Suburban Bus Lines Case, 158 Pa. Super.Ct. 638, 46 A.2d 26, aff'd 355 Pa. 521, 50 A.2d 301 (1946); English v. City of Long Beach, 35 Cal.2d 155, 217 P.2d 22 (1950); Thompson v. Lent, 53 App.Div.2d 721, 383 N.Y.S.2d
(1976); cf. Commonwealth v. Cronin, 336 Pa. 469, 9 A.2d 408 (1939); see generally, 18 A.L.R.2d 552.
In any proceeding that is judicial in nature, whether in a court or in an administrative agency, the process of decision must be governed by the basic principle of the exclusiveness of the record . . . . Unless this principle is observed, the right to a hearing itself becomes meaningless. Of what real worth is the right to present evidence and to argue its significance at a formal ...