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THEODORE E. CLITES v. TOWNSHIP UPPER YODER ET AL. (12/08/83)

decided: December 8, 1983.

THEODORE E. CLITES, APPELLANT
v.
TOWNSHIP OF UPPER YODER ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Cambria County in case of Theodore E. Clites v. Township of Upper Yoder and Robert W. Hunt, Supervisor, Eugene J. Glova, Supervisor, and C. T. Madigan, Supervisor, No. 1981 -- 4909.

COUNSEL

William A. Weiler, for appellant.

William K. Eckel, for appellees.

Judges Rogers, Barry and Barbieri, sitting as a panel of three. Opinion by Judge Rogers. Judge Barry dissents.

Author: Rogers

[ 79 Pa. Commw. Page 29]

This is the appeal of Theodore E. Clites from an order of the Court of Common Pleas of Cambria County affirming the decision of the Board of Supervisors of Upper Yoder Township to remove the appellant from his position of chief of the township police force.

The appellant's removal from office was for his failure to deliver to the assistant chief of police, on order of the Board of Supervisors, the logbooks in which police officers record their activities while on duty. In 1981 the Board directed the appellant to deliver all police records back to 1974 to the assistant chief. The appellant failed to deliver the logbooks for any year before the year 1979 and some of the logbooks for 1979 because he had thrown them out in the trash. The Board of Supervisors voted to remove the appellant and then formally charged him with violation of an official duty; inefficiency; neglect; intemperance; disobedience of orders; and conduct unbecoming an officer, each of which charge is made a ground for removal by Section 2 of the Act of June 15, 1951, P.L. 586, as amended, 53 P.S. § 812.

At the public hearing conducted by the Board at the demand of the appellant, counsel for the appellant challenged one of the supervisors for bias on the ground that the appellant had charged him with a criminal offense. The lawyer appointed specially to

[ 79 Pa. Commw. Page 30]

    advise the Board at the hearing, believing that the circumstances did not require recusal, declined to advise the supervisor to step down. As for evidence, the appellant's counsel stipulated for his client that the logbooks in question were not produced because "they don't exist. They were disposed of by Chief Clites. Thrown away with trash." It was shown at the hearing that there were no copies of the material recorded in the logbooks and that at least some of the information contained in them was not recorded elsewhere or otherwise available. The appellant did not testify.

The Board concluded that the appellant's destruction of the logbooks was conduct unbecoming an officer; inefficiency; neglect; intemperance; disobedience of orders; and violation of an official duty. The Board also noted that the appellant's destruction of records was in their opinion a violation of Section 4911(a)(3) of the Pennsylvania Crimes Code, 18 Pa. C.S. § 4911(a)(3), which provides that a person commits a criminal offense when he intentionally and unlawfully destroys any record belonging to or kept by the government for information.

The appellant appealed his removal to the court of common pleas suggesting that the record made by the Board of Supervisors was not full and complete and requesting that additional evidence be heard by the court. The hearing judge heard the appellant's additional evidence. This consisted of his testimony to the effect that he had never been ordered by the supervisors not to destroy logbooks; and that one of the supervisors took the logbooks and other "garbage" from the township offices to the dump in a truck. He admitted however that he could not say that the supervisor knew that the logbooks were among the ...


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