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GNIOTEK v. CITY OF PHILADELPHIA

March 7, 1986

LOUIS GNIOTEK, CARMEN CHRISTY, JOSEPH GIOFFRE, AUGUSTINE PESCATORE, LEONARD GARRIS, EUGENE SULLIVAN, DAVID SOFRONSKI, ROBERT SCHWARTZ, ROBERT STANSFIELD, and FRATERNAL ORDER OF POLICE, Plaintiffs
v.
CITY OF PHILADELPHIA, W. WILSON GOODE, LEO BROOKS, GREGORE J. SAMBOR, ANDREAS HANTWERKER, JOHN STRAUB, ESQ., and BARBARA MATHER, Solicitor, Defendants



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 This is an action brought by nine former Philadelphia Police Officers and the Fraternal Order of Police ("Plaintiffs") stemming from the officers' dismissals from the Philadelphia Police Department in the latter part of 1984. Plaintiffs claim that the civil and constitutional rights of the officers have been violated by the named defendants. The named defendants are: The City of Philadelphia, Mayor Wilson Goode, former Managing Director Leo Brooks, former Police Commissioner Gregore Sambor, Inspector Andreas Hantwerker, Assistant City Solicitor John Straub, and Solicitor Barbara Mather (hereinafter "Defendants"). Plaintiffs seek punitive and compensatory damages as well as declaratory and injunctive relief.

 In 1984, the United States instituted criminal proceedings against fifteen former Philadelphia Police officers alleging various acts of police corruption. United States v. Martin, et al., Cr. No. 84-106. Some defendants were severed. The first trial was held in July 1984 and the second trial was held in November 1984 under the caption United States v. Volkmar. During the course of these proceedings, several witnesses for the government identified the nine plaintiff police officers in this action as recipients of bribes. The plaintiff police officers were soon thereafter dismissed from the Police Department.

 The defendants have filed a motion to dismiss or in the alternative for summary judgment. Plaintiffs have responded with a cross-motion for summary judgment. In addition, the American Civil Liberties Foundation ("ACLF") has filed an amicus curiae brief on the issue of the constitutionality of the suspension and dismissal procedures employed by the Philadelphia Police Department. Defendants have filed a response to plaintiffs' motion and to the ACLF's brief.

 The Court will dispose of the pending motions in the following manner: The defendants' motion to dismiss the Fraternal Order of Police ("FOP") from the action on the ground that the FOP lacks standing will be denied. The defendants' motion to dismiss plaintiffs' claim pursuant to 42 U.S.C. § 1985 for failure to state a claim will be granted. The defendants' motion to dismiss plaintiffs' claim in connection with the deprivation of their pensions will be granted. Summary judgment will be entered in favor of the defendants in connection with plaintiffs' claims that the suspension and dismissal procedures used by defendants violated the police officers' procedural due process; that plaintiff police officers' fifth amendment rights were violated by the dismissal procedures; and that they were not dismissed for "just cause."

 Plaintiff Gioffre was similarly identified in the Martin trial as a recipient of bribes in return for permitting illegal activities. Former Police Captain Joseph Alvaro, who was in charge of the Vice Squad in the Northwest Police Division, testifying for the government stated that during the period November 1982 and March 1983, Gioffre collected payments from liquor licensed establishments in return for permitting illegal activities.

 On November 1, 1984, former police officer George Bowie, during the course of his entry of a guilty plea, identified plaintiff Sullivan as the recipient of bribe monies.

 In the trial of United States v. Volkmar in November 1984, George Bowie, a prosecution witness, identified plaintiffs Schwartz and Stansfield as recipients of bribes. He testified: "I had Bob Schwartz picking up from several people, and then Bob Stansfield also." Government witness Robert Sadowl also testified that he met with plaintiff Sofronski "and discussed my business throughout the city," and that they made an agreement regarding Sadowl's video poker machines. Sadowl testified "It was $10 per location per month."

 On the day after the implicating testimony was made, each of the plaintiff police officers, except Sullivan, was ordered to report to the Ethics Accountability Division of the Police Department. Each officer appeared and was called in individually with his counsel present. Each officer was advised that he had been identified in federal court testimony as the recipient of bribes in connection with the performance of his duties as a police officer and that each was the subject of a Philadelphia Police Department criminal investigation. Each officer was then given his Miranda warnings and was asked if he wished to give a statement. A copy of the warnings is attached as Appendix A. Each officer, on advice of his counsel, asserted his fifth amendment privilege against self-incrimination and chose to remain silent. Each officer was then given a memorandum entitled "Notice of Suspension with Intent to Dismiss," which stated that the suspension was effective immediately. A copy of a "Notice of Suspension with Intent to Dismiss" is attached as Appendix B. Plaintiff Sullivan was served at home with the "Notice of Suspension with Intent to Dismiss" but did not receive Miranda warnings. He was, however, notified of the reasons for his suspension with intent to dismiss.

 After his suspension, each plaintiff, except Sullivan and Stansfield, received a copy of a "Statement of Charges filed and Action Taken" ("Statement"). A copy of a "Statement of Charges Filed and Action Taken" is attached as Appendix C. The Statement lists the violations of the Police Disciplinary Code with which each individual plaintiff police officer was charged. Plaintiffs Gniotek, Christy, Pescatore, Gioffre, Schwartz and Sofronski signed the Statement and checked the box on the Statement marked "I Plead Not Guilty & Request a Hearing". Plaintiff Garris refused to sign the Statement.

 
If you believe that this intended action is unjustified, you may, under regulations of the Civil Service Commission, within ten days from the service of this notice, notify me in writing of your reasons therefor and summarize the facts in support of your belief. A copy of your letter to me must be sent at the same time to the Personnel Director.

 The notice was signed by then Police Commissioner Sambor. Sullivan was also notified of his right to submit a letter within ten days to Police Commissioner Sambor. Neither the Police Commissioner nor the Personnel Director ever received a letter from any of the plaintiffs within the ten day period.

 Each plaintiff police officer was dismissed "effective ten days from service of [the Notice of Intention to Dismiss]."

 Each of the plaintiff police officers initiated individual grievances with the Police Commissioner for the purpose of challenging his dismissal. Pursuant to the FOP collective bargaining agreement with the City, the plaintiffs submitted their grievances to arbitration by an arbitrator designated by the American Arbitration Association. Plaintiffs' grievances were consolidated and were heard by one arbitrator. The arbitrator issued an opinion on November 25, 1985, in which he found that Christy, Pescatore and Garris had been dismissed for just cause. These three officers have not been indicted. The arbitrator determined that Gniotek and Sofronski were not dismissed for just cause because the City had not met its burden of proof. These two officers have not been indicted. The arbitrator ordered Gniotek and Sofronski reinstated if witnesses against them were not produced within two weeks of the date of his opinion. The grievances of Gioffre, Sullivan, Schwartz and Stansfield were "tabled pending final outcome, including possible appeals, of the proceedings in federal court." Arb. opin. at 2, Nov. 25, 1985. Gioffre, Sullivan and Schwartz were indicted and were found guilty. Stansfield has not been indicted.

 Subsequent to their termination, the plaintiff police officers were advised by Anthony Witlin, the Executive Director of the Philadelphia Board of Pensions and Retirement (the "Board"), that they may be disqualified from receiving pension benefits pursuant to § 217 of the Philadelphia Municipal Employees Retirement Ordinance. The Board is currently conducting hearings on the plaintiffs' rights to their pension benefits.

 Defendants have listed the following eight grounds in support of their motion to dismiss or in the alternative for summary judgment:

 1) Plaintiffs were lawfully dismissed for just cause under the Philadelphia Home Rule Charter;

 2) Plaintiffs' discharge did not violate the Constitution because they were not dismissed for invoking their Fifth Amendment rights;

 3) Plaintiffs' dismissals complied with the due process requirements for public employees;

 4) Plaintiffs' complaint alleges no class-based discrimination for which relief can be granted under 42 U.S.C. § 1985;

 5) This Court should abstain from making any ruling on the propriety of plaintiffs' discharge ...


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