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MICHAEL J. FULLER v. BOROUGH WAYNESBURG AND WAYNESBURG BOROUGH CIVIL SERVICE COMMISSION (01/27/86)

decided: January 27, 1986.

MICHAEL J. FULLER, APPELLANT
v.
BOROUGH OF WAYNESBURG AND WAYNESBURG BOROUGH CIVIL SERVICE COMMISSION, APPELLEES



Appeal from the Order of the Court of Common Pleas of Greene County, in case of In Re: Petition of Michael J. Fuller, Misc. No. 52 of 1983.

COUNSEL

Robert N. Clarke, for appellant.

Harry J. Cancelmi, Jr., for appellees.

Judges MacPhail and Doyle, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 94 Pa. Commw. Page 362]

Michael J. Fuller (Appellant) appeals from the order of the Court of Common Pleas of Greene County which affirmed the action of the Waynesburg Borough Civil Service Commission dismissing Appellant from his position as police officer.

Appellant's dismissal arose out of an incident in which his superior, Lieutenant Clark, overheard a conversation

[ 94 Pa. Commw. Page 363]

    among Appellant, another officer, and a non-member of the police force. Clark believed that the conversation involved statements critical of the police department, in violation of a departmental regulation which stated:

No member of the department shall criticize the department or any of its members to any person or agency.

For this reason he ordered both Appellant and the other officer to submit a written memorandum of that part of the conversation in which departmental matters were discussed. Appellant initially began to write such a memorandum, but shortly thereafter refused, tearing up the memorandum in front of Lieutenant Clark. Clark again ordered compliance and Appellant again refused. Appellant was discharged by the Borough Council for refusal to carry out a direct order. The dismissal was upheld by the Waynesburg Borough Civil Service Commission (Commission), and Appellant appealed. After a de novo hearing before the court of common pleas, that court affirmed the dismissal, and appeal to this Court followed.*fn1

Appellant acknowledges that he disobeyed a direct order, but argues that he was justified because the regulation upon which the order was based constituted an infringement on his constitutional right of free speech.

The Pennsylvania Supreme Court recently dealt with the issue of First Amendment rights of public employees in Sacks v. Department of Public Welfare, 502 Pa. ...


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