decided: July 9, 1984.
FORREST M. SWAYDIS, PETITIONER
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA STATE POLICE, RESPONDENT
Appeal from the Order of the Commissioner of the Pennsylvania State Police in the case of Court-Martial, Trooper Forrest M. Swaydis, dated March 4, 1981.
Harris T. Bock, with him, Kathleen A. Fiftal, Bock and Finkelman, for petitioner.
Gregory R. Neuhauser, Deputy Attorney General, with him, Francis R. Filipi and Sally A. Lied, Deputy Attorneys General, and LeRoy S. Zimmerman, Attorney General, for respondent.
President Judge Crumlish, Jr. and Judges Rogers and MacPhail, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.
[ 83 Pa. Commw. Page 511]
Trooper Swaydis appeals a Pennsylvania State Police Commissioner's order dismissing him following a Court-Martial Board's (Board) determination that he had engaged in improper conduct. We affirm.
This case is here on remand*fn1 from our Supreme Court for resolution of the following issues: (1) whether there was an improper commingling of prosecutorial and adjudicatory functions; and (2) whether the Board was without the power to render an adjudication on the criminal charges.
Swaydis had been charged with violations of both the Pennsylvania State Police Field Regulations and the Pennsylvania Crimes Code. The Commissioner sent a memorandum to the Governor requesting that court-martial proceedings be convened. The memorandum, dated November 26, 1980, contained allegations that Trooper Swaydis opened a checking account under a fictitious name and address, wrote checks knowing there were insufficient funds in said account, borrowed money from three individuals without repayment, withdrew $4,300 from his savings account knowing there were no legitimate funds in the account, established a residence under an alias, traveled out of his patrol zone without permission from his supervisor,
[ 83 Pa. Commw. Page 512]
and conducted personal business on several occasions while in uniform and using an official vehicle.
On December 2, 1980, a district magistrate dismissed criminal charges against Swaydis, finding that the Commonwealth had failed to establish a prima facie case. On December 23, 1980, the Governor recommended that court-martial proceedings be convened. It is undisputed that, when the Governor issued his recommendation, he had not been notified that the criminal charges against Swaydis had been dismissed.
Swaydis first alleges his due process rights were violated during the court-martial proceedings because the prosecutorial and adjudicatory functions in two instances were commingled. Swaydis argues that (1) the Disciplinary Officer usurped the Commissioner's duties, and (2) the appointment of the State Police Chief Counsel as Trial Judge Advocate presented the potential for bias, prejudice, and conflict of interest.
Swaydis contends that the Disciplinary Officer had the de facto responsibility of making the final decision on whether State Police members should be court-martialed*fn2 and that his invasive role permeated the adjudicatory function*fn3 and scarred the entire proceedings. He asserts that the Disciplinary Officer improperly assumed the Commissioner's duty of appointing
[ 83 Pa. Commw. Page 513]
the Board members and relies on Section 711 of the Administrative Code of 1929,*fn4 which provides that no member of the State Police may be dismissed before the Commission provides proper notice of charges and a hearing "before a Court-Martial Board appointed by the Commissioner." Section I(B) of the Manual also provides, however, that the "Commissioner . . . shall establish a Court-Martial Board: and that an "enlisted member will be given an opportunity to be heard . . . before a Court-Martial Board appointed by the Commissioner." The record reveals that the Disciplinary Officer and the Director of the Bureau of Personnel submitted Board recommendations to the Commissioner who had to approve such choices. Nowhere in the Code or in the Manual does it provide that the Commissioner is bound by the Disciplinary Officer's choices.*fn5 The Commissioner is the ultimate designating authority.*fn6
Swaydis also contends that the Disciplinary Officer should not have been selected as the coordinator who, as the Manual provides, insures that all required court-martial procedures were properly followed.*fn7
[ 83 Pa. Commw. Page 514]
Also, the Disciplinary Officer admitted that he had "some input" into a discovery decision to deny investigatory reports and into another decision whether to continue the hearing.*fn8 Our careful review of the record discloses that the Disciplinary Officer's prosecutorial function was adequately separated from his judicial function and therefore we can find no impermissible commingling of these functions.
We also reject Swaydis' contention that his right to due process was violated by the appointment of the State Police Chief Counsel as the Trial Judge Advocate. Swaydis argues it is constitutionally impermissible for a Trial Judge Advocate who performs prosecutorial functions to also act as Chief Counsel for the adjudicatory board and the Commissioner. This argument is similar to the one argued in Pennsylvania Human Relations Commission v. Feeser, 469 Pa. 173, 364 A.2d 1324 (1974), where the Supreme Court held there was no impropriety where the Commissioner's general counsel represented the complainants.*fn9 Here,
[ 83 Pa. Commw. Page 515]
the record indicates that the Trial Judge Advocate acted in a purely adversary capacity and did not conduct the hearing, make legal rulings, or advise the Board during the course of the proceeding.*fn10 The Board issued its own rulings following the attorneys' arguments. Moreover, the Board's legal advisor was a Deputy Attorney General.
We hold, therefore, that Swaydis' proffered allegations of improper commingling are not supported by the record evidence. The alleged commingling of functions did not affect the fact-finding role of the adjudicator. Swaydis does not contest the validity of the misconduct charges. His claim rests on a denial of due process. His inability to produce any evidence of actual bias is fatal to that claim. See Bryan v. Pennsylvania Human Relations Commission, 45 Pa. Commonwealth Ct. 125, 134, 404 A.2d 1368, 1372 (1979). The allegations do not raise such a risk of prejudice as to taint the decision issued after the adversarial hearing. Fumo v. Insurance Department, 58 Pa. Commonwealth Ct. 392, 395, 427 A.2d 1259, 1262 (1981).
Finally, we reject Swaydis' contention that the subsequent administrative agency court-martial proceeding was barred by the result of the previous criminal prosecution found on the same facts.*fn11 "Resolution of criminal charges in favor of a criminal defendant
[ 83 Pa. Commw. Page 516]
does not bar subsequent civil or administrative proceedings concerning the same underlying misconduct." Swaydis, Pa. at , 470 A.2d at 107-08, citing V.J.R. Bar Corp. v. Pennsylvania Liquor Control Board, 480 Pa. 322, 326, 390 A.2d 163, 164-65 (1978).
The order of the Pennsylvania State Police Commissioner dated March 4, 1981, is hereby affirmed.