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Fernandes v. Borough of West Pittston

July 23, 2010

DION FERNANDES, PLAINTIFF,
v.
BOROUGH OF WEST PITTSTON, MAYOR WILLIAM GOLDSWORTHY, TERRI BUGELHOLL, BRIAN THORNTON, KEVIN LESCAVAGE, AND PETE MUSINSKI, DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Carlson

(Judge Munley)

REPORT AND RECOMMENDATION

I. Introduction

This civil rights case, which comes before the Court on a motion for summary judgment, presents two questions concerning the nature of a public employee's property right to a part-time government job, and the limitations which the First Amendment may place on local officials when discharging part-time employees. These constitutional questions are presented to the Court cast against the backdrop of the discharge of a local police officer, a part-time policeman who was fired after he was: (1) the subject of citizen complaints; (2) sanctioned for improper use of his police car; (3) disciplined for using a police computer intelligence network to gather information on fellow police officers; (4) identified in pictures that were allegedly posted on internet social networking sites, postings which allegedly depicted the officer at parties with under-aged youth; and (5) involved in an early morning, off-duty, alcohol-fueled scuffle with a fellow police officer at a neighboring borough police department.

For the reasons set forth below, it is recommended that the Court find, on these facts, that the discharge of this part-time police officer did not violate any rights guaranteed part-time public employees by the United States Constitution.

II. Statement of Facts and of the Case

A. Dion Fernandes

In 2004, the Plaintiff, Dion Fernandes was hired as a police officer in West Pittston Borough. (Doc. 43, Ex.1, pp.12-13.) Fernandes worked as a West Pittston police officer for approximately fifteen months, until he was discharged in March 2006. (Id.)

Throughout his brief tenure with the West Pittston Borough Police Department, Fernandes was a part-time employee. (Id., pp.15-17.) Thus, Fernandes was never employed as a full-time police officer and was never embraced by the collective bargaining agreement which applied only to full-time police officers in the Borough of West Pittston. (Doc. 43, Ex. 1, p.27.) Indeed, during the time period embraced by this complaint, it would have been impossible to Fernandes to serve on-call at all times with the West Pittston Police Department, since Fernandes was simultaneously working several other part-time jobs in various local municipalities. (Id., pp. 5-17.)

B. The 2005 West Pittston Borough Council Election

At the time that Fernandes was first hired as a part-time West Pittston police officer, the Defendant, William Goldsworthy, was the mayor of West Pittston. Beginning in 2004, Mayor Goldsworthy recruited four other West Pittston residents--Terri Bugelholl, Brian Thornton, Kevin Lescavage and Pete Musinski-- to run for election in the Spring 2005 Republican primary for positions on the West Pittston Borough Council. (Doc. 43, Ex. 2, pp. 9-14; Ex. 4, pp. 9-13; Ex. 5, pp.6-10; Ex. 6, pp.7-8) Together, these Borough Council candidates ran as the so-called "mayor's team", a slate of council candidates whose platform was one of support for various programs and initiatives fostered by Mayor Goldsworthy, and opposed in some respects by the then existing West Pittston Borough Council. (Id.)

Since there was no slate of democratic nominees in this particular municipal primary election, (Doc. 44, Ex.4, p. 9). the primary success of this slate of council candidates meant that these candidates were unopposed in the fall general election. However, despite being unopposed in the general election, this slate of candidates was unable to take office until January, 2006 after that general election was concluded.(Id.)

C. Dion Fernandes' Alleged Involvement in the West Pittston Borough Council Election

In connection with this local election, Fernandes alleges that he opposed the candidacy of this Borough Council slate favored by Mayor Goldsworthy. (Doc. 43, Ex. 1, pp. 74-78.) It is undisputed, however, that the nature of Fernandes opposition to this slate of candidates was both limited and, in some respects, muted.(Id.)

Fernandes' opposition to these candidates did not include voting against them. Indeed, in 2005 Fernandes was not a resident of West Pittston Borough and, therefore, could not vote in this local election. (Doc. 43, Ex. 1, pp. 75-77.) Furthermore, Fernandes presents no evidence that he actively engaged many types of in partisan political activity typically associated with electioneering: Thus, he did not post signs; was not employed by any candidates; did not actively distribute campaign literature; and did not engage in organized voter canvassing. Instead, according to Fernandes, his political activities in this campaign were limited to attending two breakfast functions at a local Moose Lodge, and getting out "word of mouth around town" opposing these council candidates. (Id.) Fernandes specifically denied any other involvement in this political campaign, (id.), and his involvement in this campaign was sufficiently muted that neither Mayor Goldsworthy, nor any members of this slate of council candidates, reported having any knowledge of his 2005 campaign activities.(Doc. 43 Ex.2, pp. 62-63; Ex. 4, 99.87-89; Ex. 5, p. 16; Ex. 6, p.13.)

D. Dion Fernandes' Job Performance Problems and Discharge

While West Pittston officials uniformly denied any knowledge of Fernandes' political activities in 2005, Fernandes' job performance as a part-time police officer was repeatedly the subject of local government concerns and inquiries throughout 2005 and early 2006. These inquiries began in June 2005, when Mayor Goldsworthy received constituent complaints from a local family regarding Fernandes' treatment of their child during a police encounter.(Doc. 43, Ex. 1, p.68; Ex. 4, pp.69-74.) Fernandes was questioned, and counseled, as a result of this citizen complaint.(Id.)

Despite this counseling, Fernandes continued to experience significant problems in his work at the West Pittston Police Department throughout 2005. Thus, in November 2005, Fernandes was suspended from the police department after it was determined that he had violated a borough policy forbidding police officers from taking patrol cars outside the borough without prior supervisory approval. (Id., Ex.1, pp.40-1; Ex. 4, pp.31-37.) Shortly after this disciplinary episode, in December 2005 Fernandes also had his access to JNET, an inter-agency computerized police intelligence network, curtailed after it was determined that Fernandes had been using this JNET access to gather unauthorized information about other local police officers.(Id., Ex. 1,pp.35-37.)

By 2006, borough officials had also learned that an internet social networking site had posted photos purporting to be photographs of Fernandes at a party with under-aged youth. (Id., Ex.2, ,pp.27-30; Ex.6, pp.27-8.) This conduct became of separate area of concern for local officials, since Fernandes' actions depicted in these photographs raised questions regarding both his judgment, and his fitness as a police officer. (Id.) This conduct also became a topic in a civil rights lawsuit brought against Fernandes arising out of what was alleged to have been excessively aggressive law enforcement activities targeting juveniles. (Id., Ex. 1, pp. 85-87.)

Despite these concerns, when the new borough council was installed in West Pittston in early 2006, Fernandes' November 2005 suspension was lifted and he was reinstated to part-time police duties. (Id., Ex. 1, pp. 31-2.) However, within two months Fernandes became embroiled in yet another controversy involving an early-morning physical altercation with a fellow police officer, an altercation instigated by Fernandes while he was off-duty and after he had been drinking.(Id., Ex. 1, pp. 44-50, dep. Ex D-6.)

The incident occurred at approximately 3:30 a.m. on the morning of March 1, 2006, when a West Pittston police officer, Kenneth Burkhardt, drove in his police car to the neighboring borough of Exeter, to discuss some police matters with an Exeter Borough police officer. (Id.) Fernandes, who had recently been suspended from his job for unauthorized use of a borough police car outside the borough, learned of this activity during the early morning hours of March 1.(Id.) Although he was not on-duty, Fernandes, who had admittedly been drinking earlier in the evening, decided to travel to the Exeter Police Department at 3:30 a.m. to confront his fellow West Pittston police officer regarding his use of the borough police car. (Id.)

At the Exeter Police Department, Fernandes became involved in a violent, hostile confrontation with his fellow police officer. In the course of this confrontation, Fernandes struck a filing cabinet with his fist, and reportedly shouted obscenities at his fellow West Pittston police officer. (Id.) Fernandes and Officer Burkhardt then came to blows, pushing and shoving one another until an Exeter police officer physically intervened, and commanded them to stop. (Id.) Exeter police then escorted Fernandes, who smelled of alcohol, from the borough police station.(Id.)

When this episode was reported to Mayor Goldsworthy by Exeter Borough officials, the Mayor and Borough Councilman Thornton conducted an inquiry into this matter. As part of this inquiry, borough officials met with Fernandes who discussed this incident. During this meeting, Fernandes confirmed that he had sought out, confronted, and engaged in a physical altercation with a fellow police officer at 3:30 a.m. on March 1, 2006. Fernandes also made statements regarding this episode that cast further doubt upon his judgment and fitness, telling borough officials that if he had the opportunity to reflect upon his conduct he would not have changed his behavior and ...


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