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05/14/97 THOMAS SITEMAN v. CITY ALLENTOWN AND CITY

COMMONWEALTH COURT OF PENNSYLVANIA


May 14, 1997

THOMAS SITEMAN, JR., APPELLANT
v.
CITY OF ALLENTOWN AND CITY OF ALLENTOWN CITY COUNCIL

Appealed From No. 95-C-1050. Common Pleas Court of the County of Lehigh. Judge DIEFENDERFER, President Judge.

Before: Honorable James Gardner Colins, President Judge, Honorable Joseph T. Doyle, Judge, Honorable Bernard L. McGINLEY, Judge, Honorable Doris A. Smith, Judge, Honorable Dan Pellegrini, Judge, Honorable Rochelle S. Friedman, Judge, Honorable James R. Kelley, Judge. Opinion BY Judge Friedman. President Judge Colins concurs in the result only. Judge Smith Dissents. Judge Kelley concurs in the result only. Concurring Opinion BY Judge Doyle

The opinion of the court was delivered by: Friedman

OPINION BY JUDGE FRIEDMAN

FILED: May 14, 1997

Thomas Siteman, Jr. (Siteman) *fn1 appeals from an order of the Court of Common Pleas of Lehigh County (trial court) dismissing Siteman's petition to review his discharge from employment as a police officer by the City of Allentown (City) and the City of Allentown City Council (City Council) pursuant to section 4408 of the Third Class City Code (Code). *fn2

In a letter dated October 7, 1993, Wayne T. Stephens, Director of the City's Department of Police, notified Siteman that he was suspended without pay until City Council could adjudicate certain charges against him. *fn3 On October 20, 1993, Siteman's attorney made a formal request for a hearing before City Council and asked for more specific information concerning Siteman's alleged misconduct. (R.R. at 323a.)

On January 26, 1994, Thomas F. Bennis, a police captain, sent a letter to Siteman informing him that, as a result of further investigation, two additional charges had been filed against him. *fn4 On May 17, 1994, the Assistant City Solicitor provided Siteman with details about the specific incidents which gave rise to the charges against him. (R.R. at 323a-29a.)

City Council held a hearing on June 22, 1994, at which time Siteman objected to the police department's failure to provide sufficiently detailed notice of the charges against him until May 17, 1994, seven months after Siteman's request for this information and one month before the hearing. (R.R. at 144a-46a.) Siteman stated that, due to the passage of time, he could not find the individuals named in the two most serious charges. (R.R. at 156a-57a, 159a.) City Council asked the parties to brief whether Siteman received sufficient notice of the charges and, if he did not, whether City Council had authority under the Code to dismiss the charges against Siteman on that basis. *fn5 (R.R. at 160a.)

After the parties submitted their briefs, Siteman objected that the police department's brief contained exhibits which amounted to evidence on the merits of the case which could prejudice members of City Council against Siteman. *fn6 On October 31, 1994, after argument, City Council voted three to two to dismiss all charges against Siteman with prejudice. *fn7 However, on November 2, 1994, considering the same matter as a resolution at a public meeting, City Council voted three to two against Siteman, with the president of City Council changing his vote. (R.R. at 530a-33a.)

The next day, the City Council member who had moved to dismiss the charges against Siteman recused himself because he was convinced that Siteman's due process rights had been violated. (R.R. at 534a-35a.) On December 1, 1994, Siteman's attorney sent a letter to the remaining four City Council members, asking them to recuse themselves. (R.R. at 467a-68a.) The other City Council member who voted to dismiss the charges against Siteman subsequently recused herself, leaving only three members of City Council qualified to vote on the matter. (R.R. at 502-03a.)

On January 25, 1995, at the first evidentiary hearing, Siteman's attorney moved to dismiss the charges against Siteman because three City Council members do not constitute a quorum and because the remaining members of City Council were not an impartial tribunal. (R.R. at 175a-78a.) When City Council failed to rule on the motion and proceeded to take evidence, Siteman and his attorney left the proceedings in protest. (R.R. at 179a.)

After several additional hearings, the remaining three members of City Council upheld the charges against Siteman and adopted a resolution discharging him from employment with the City. (R.R. at 487a-503a.) Siteman appealed to the trial court, which did not disturb City Council's resolution. (R.R. at 506a-18a.)

On appeal to this court, *fn8 Siteman argues that the final City Council vote was not proper because the three City Council members did not constitute a quorum. *fn9 We agree.

City Council's quorum rule is that "[a] quorum shall be four (4) members of Council or all of the members of Council, whichever number is less." *fn10 (R.R. at 668a.) Section 607 of the Code, 53 P.S. § 41607, provides that a majority of the whole number of members of the council shall constitute a quorum. *fn11 Here, the whole number of City Council members, or all of the members of City Council, is seven members. Thus, under either the rule or the statute, a quorum is four members.

In this case, all but three members of City Council recused themselves on the matter of Siteman's discharge. A recused member, even when that member is present and recusing, does not count towards a quorum. *fn12 Thus, because City Council did not have a quorum when it conducted its hearings on this matter and, afterward, when it adopted the resolution to discharge Siteman, there was, in reality, no meeting and no valid vote.

Nevertheless, in certain cases, this court has recognized the Rule of Necessity, a principle at common law that requires a Judge with a personal interest in a case to proceed if the case cannot be heard otherwise. Sherman v. Kaiser, 664 A.2d 221 (Pa. Commw. 1995). If all of the members of a tribunal are subject to recusal, the tribunal must consider the case despite the personal interest or bias of the members; otherwise, the public and the litigants would be denied a decision in the matter. Id.

The Rule of Necessity has also been applied where a tribunal could not proceed due to the lack of a quorum. In In re Complaint of Doe, 2 F.3d 308 (8th Cir. Jud. Council 1993), a complaint was filed in the Eighth Circuit Court of Appeals which named as respondents most of the Judges which comprise the 15-member Judicial Council of the Eighth Circuit. *fn13 The most senior member of the court in regular active service who was not named as a respondent dismissed the complaint. The complainant then filed a petition for review with the Judicial Council. However, all but two members of the Judicial Council were parties to the proceeding, and, because the two members did not constitute a quorum, the Judicial Council could not proceed. The tribunal noted that, under the Rule of Necessity, "if the Judges who ordinarily would hear the case are likely to disqualify themselves because of their interest in its outcome, they may hear the case if, otherwise, it would not be heard at all." Id. at 310. Applying the Rule of Necessity, the Judicial Council held that the Judges who might have recused themselves were permitted to review the case. Thus, the tribunal was able to convene a quorum. *fn14

We believe that this is the proper approach here. Because the three City Council members who did not recuse themselves did not constitute a quorum, we can invoke the Rule of Necessity to permit those members who had recused themselves to hear this case. Accordingly, we vacate City Council's resolution discharging Siteman from employment and remand this case for hearings before and a determination by the entire City Council.

ROCHELLE S. FRIEDMAN, JUDGE

President Judge Colins concurs in the result only.

Judge Smith Dissents.

Judge Kelley concurs in the result only.

ORDER

AND NOW, this 14th day of May, 1997, we reverse the order of the Court of Common Pleas of Lehigh County, dated November 9, 1995, and vacate the resolution of the City of Allentown City Council, dated April 5, 1995. Further, we remand this case to the Court of Common Pleas for remand to the City Council for further proceedings before the entire City Council.

Jurisdiction relinquished.

ROCHELLE S. FRIEDMAN, JUDGE

CONCURRING OPINION

BY JUDGE DOYLE

FILED: May 14, 1997

I am in full agreement with the majority opinion as written by Judge Rochelle S. Friedman and write separately only to clarify one point. During oral argument of the appeal on February 5, 1997, the Court heard conflicting versions of how many members of City Council were actually present at the public meeting on April 5, 1995, when the vote was taken to dismiss officer Thomas Siteman. Although the record is clear that only three Council members voted, the record is anything but clear regarding how many members were present and not voting. The precise issue before the Court then became whether the presence of other members of Council, if they were present, would be included in the count to determine the presence of a quorum. We hold today, following the majority of jurisdictions in the United States, see 2 Am. Jur. 2d Administrative Law § 100 (1994); 67A C.J.S. Parliamentary Law § 6(b) (1978), and cases cited therein, that where a member of any board, commission or other similar body recuses himself or herself, regardless of that member's presence at the meeting, such presence may not be counted in determining the existence of a legal quorum. See King v. New Jersey Racing Commission, 103 N.J. 412, 511 A.2d 615 (N.J. 1986). However, where a member merely abstains from voting, such member's presence does count toward the required number needed for a quorum. Walker Pontiac v. Department of State, 136 Pa. Commw. 54, 582 A.2d 410 (Pa. Commw. 1990); see also 59 Am. Jur. 2d Parliamentary Law § 12 (1987) ("Abstention and the absence of a voter are not to be treated alike. The abstaining voter is counted in determining the presence of a quorum, while the absent voter is not included.").

JOSEPH T. DOYLE, Judge


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