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CONJOUR v. WHITEHALL TWP.

April 18, 1994

FREDERIC A. CONJOUR
v.
WHITEHALL TOWNSHIP and ELIZABETH L. BUCHMILLER



The opinion of the court was delivered by: ANITA B. BRODY

 Anita B. Brody, J.

 In the context of a motion for summary judgment, I must initially decide whether a township police chief who was terminated shortly after the ascent of a new township executive may maintain a procedural due process claim against the township and township executive for their failure to give him notice and a hearing before terminating him when (a) he asserts a property interest grounded in civil service regulations, but his appointment to the position was not carried out in strict compliance with the regulations, (b) and a liberty interest based on damage to his reputation having occurred in conjunction with his termination. I find that because the plaintiff was not appointed in strict compliance with the civil service regulations, he cannot claim a property interest for which process was due. I do find, however, that plaintiff has raised a material issue of fact regarding violations of his liberty interests, caused by damage to his reputation having occurred during the course of his termination, which would entitle him to procedural due process rights.

 I must also determine whether plaintiff may maintain a claim that he was fired because of his political affiliation based on evidence that he was terminated in order to make room for a replacement chosen for political affiliations, even if plaintiff's own political activities were not implicated, and if so, whether plaintiff's position was one for which political affiliation was an appropriate consideration. I find that plaintiff may maintain such a claim even when his own political activities did not motivate the termination, and that he has raised a material issue of fact regarding whether political affiliation was a permissible factor in personnel decisions for his position.

 I. STATEMENT OF MATERIAL FACTS

 The following facts are either undisputed, or, where a material dispute exists, must be construed most favorably to the plaintiff in order to decide this motion for summary judgment. Plaintiff Frederic A. Conjour was appointed to the position of Chief of Police of Whitehall Township on September 30, 1980. Declaration of William H. Platt, Exh. B ("Platt Decl."). Although this was Mr. Conjour's first position with the Whitehall Township Police Department, he brought to his position sixteen years of experience as a police officer, three years of which were served as Chief of Police for West Grove Police Department in Baltimore, Maryland. Platt Decl. Exh. 3. Prior to his appointment by Whitehall Township, Mr. Conjour asserts that he was subjected to a two-hour long, oral, non-competitive examination under the authority of the Pennsylvania Department of Community Affairs ("DCA"). Id. (Aug. 14, 1980 letter); Deposition of Frederic A. Conjour at 8-17 ("Conj. Dep."). This testing encompassed such topics as police administration, departmental organization, disciplinary actions, situational problems, and supervisory techniques. Conj. Dep. at 13-16. Mr. Conjour claims that during his interview for this position, inquiries were also made regarding his background, experience and education. Defendants challenge Mr. Conjour's characterization of his oral examination by the DCA as the equivalent of a civil service examination.

 The appointment of Chief of Police is regulated by various sections of the civil service rules which were promulgated by the Whitehall Township Civil Service Commission ("Commission"). According to the defendants, Mr. Conjour's appointment did not meet the requirements of two of these regulations. *fn1" Resolution No. 23, adopted by the Commission in 1964, requires that all candidates for the position of Chief of Police submit to a non-competitive civil service examination administered by the Commission. Defendants' Exh. A. The DCA, not the Commission, conducted Mr. Conjour's examination. Conj. Dep. at 8-17. However, Rule 604 of the Civil Service Regulations expressly authorizes testing by outside agencies, including the DCA. Platt Decl., Exh. 3. Luella Bundy, a member of the Commission, testified that she conducted an investigation confirming that Mr. Conjour was examined by the DCA, and informed other Commission members of that fact. Deposition of Luella Bundy, at 93. Resolution No. 23 also requires that any candidate appointed to the position of Chief of Police have at least ten years of service with the Whitehall Township Police Department. Defendants' Exh. A.

 Harold D. Roach of the DCA notified the Township Executive, Edward Galgon, that Mr. Conjour was unanimously ranked first among all the candidates for the position of Chief of Police due to his performance on the oral examination. Platt Decl., Exh. B. Mr. Galgon then offered Mr. Conjour the position of Chief of Police and his appointment was approved by the Board of Commissioners on September 30, 1980 in a meeting attended by members of the Commission. Conj. Dep. at 13-17.

 After Mr. Conjour began working, the Township provided him with a job description and a personnel manual detailing his duties as Chief of Police. Declaration of Frederic A. Conjour ("Conj. Decl."), Exh. 1; Platt Decl., Exh. 4 (Interrog. 22). According to Mr. Conjour, both of these items placed all policy-making authority over the Police Department with the Township Executive, not the police chief. Id. The defendants dispute this characterization. See Defendants' Reply Brief in Support of Motion for Summary Judgment.

 The manual also contains a discharge procedure which provides that employees disciplined for unsatisfactory work performance will be subject on the first instance to a warning, on the second to a three day suspension, and finally, discharge. Conj. Decl., Exh. 2. The plaintiff never experienced a warning, or suspension. The manual also contains a disclaimer against the manual being treated as a contract, or in any way altering the at-will arrangement between the parties. Conj. Decl., Exh. 2.

 In May of 1991 defendant Elizabeth L. Buchmiller was elected to the position of Whitehall Township Executive. Conj. Dep. at 32. Ms. Buchmiller was a registered member of the Democratic Party and ran in the Democratic primary election for Township Executive. Buchmiller Dep. at 12. She was also a write-in candidate on the Republican side and won that primary election as well. Id.

 Mr. Conjour claims that approximately seven months after Ms. Buchmiller's election he was told by outgoing Township Executive Michael Harkal that he would be fired because of his political affiliations and failure to support Ms. Buchmiller's campaign. Conj. Dep. at 23. At all times during his employment with the Whitehall Township Police Department Mr. Conjour was a registered member of the Republican Party. Platt. Decl., Exh.4 (Interrog. 1). However, Mr. Conjour maintains that, given his position as Chief of Police, he refrained from open political activities such as endorsing Republican or Democratic candidates for elected office. Id. at Interrogs. 4-6. Nonetheless, Mr. Conjour asserts that Ms. Buchmiller had access to records maintained in the Whitehall Township Treasurer's Office, Lehigh County Tax Office, and the Whitehall Township Solicitor, which contained background information regarding Mr. Conjour's political affiliation. Id. at Interrogs. 7-8. In addition, Mr. Conjour claims both Ms. Buchmiller and Mrs. Conjour, plaintiff's wife, were active in a 1989 political campaign for District Justice for District Court 31-1-07. Id. As a result of Mrs. Conjour's participation in this campaign, Mrs. Conjour's political connections with the Republican Party were published in the newspaper. Id.

 Mr. Conjour received a termination letter from Ms. Buchmiller, dated January 17, 1992, citing various grounds for his dismissal. Ms. Buchmiller referred to Mr. Conjour's "continued inability to fulfill his duties and responsibilities" as the primary grounds for his dismissal. Conj. Decl., Exh. 4. Ms. Buchmiller elaborated on Mr. Conjour's alleged deficiencies in his termination letter stating that:

 
Among these inabilities are your failure to maintain the morale of the Department, your inability to make fair duty assignments without regard to favoritism or personal non-job-related considerations, your inability to maintain the dignity and decorum expected of the chief legal enforcement officer of the Township, and the need for a managerial reorganization of the Whitehall Township Police Department for the increased efficiency of operations.

 Conj. Decl., Exh. A. Mr. Conjour was denied notice and the opportunity to rebut these allegations in a civil service hearing. In his eleven years with the Whitehall Township Police Department, Mr. Conjour asserts that he was never disciplined, and that he had in fact received numerous letters of commendation. Conj. Dep. at 32; Conj. Decl., P 5 & Exhs. 4-5. Mr. Conjour's termination was well publicized in numerous newspaper articles. Conj. Decl., PP 6-7 & Exh. 3. Ms. Buchmiller detailed the purported reasons for Mr. Conjour's termination to the media, stating that Mr. Conjour "did not adequately maintain the image [she] would expect of the chief law enforcement officer in the township," that the Police Department had been inefficiently run, and that Mr. Conjour failed to fulfill his duties. Conj. Decl., Exh. 3, Jan. 18, 1992 article, Jan. 25, 1992 article; see also Conj. Decl. Exh. 3, articles dated Feb. 4, 1992, March 20, 1992, and Oct. 15, 1992.

 Immediately after his termination as Chief of Police, Mr. Conjour began looking for full-time employment. Mr. Conjour applied for sixty positions around the country, but was unable to locate any full-time employment until April 5, 1993, when he was offered his current position as a patrolman for the Northampton Borough Police Department in Pennsylvania. Conj. Dep. at 5, 42-44. Mr. Conjour maintains that the wide-spread media coverage of his termination frustrated his job search because he was forced to address and rebut Ms. Buchmiller's allegations during job interviews. Conj. Decl., PP 6-7 & Exh. 3. At the time of his termination, Mr. Conjour was forty-eight years old. Conj. Dep. at 5. Mr. Sefcik was approximately five years younger than Mr. Conjour. Conj. Decl., Exh. 5, P 6-7 & Exh. 3.

 Conjour has sued under civil rights law 42 U.S.C. § 1983, claiming that Buchmiller and the Township violated his procedural due process and First Amendment rights, as well ...


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