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Rita Bornstein v. City of Connellsville

February 2, 2012

RITA BORNSTEIN, APPELLANT
v.
CITY OF CONNELLSVILLE



The opinion of the court was delivered by: P. Kevin Brobson, Judge

Argued: November 15, 2011

BEFORE: HONORABLE DAN PELLEGRINI, Judge*fn1 HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION BY JUDGE BROBSON

Rita Bornstein (Bornstein) appeals from an order of the Court of Common Pleas of Fayette County (trial court), dated January 19, 2011. The trial court affirmed the decision of the Connellsville City Council (City Council), terminating Bornstein from her position as Health Officer of the City of Connellsville (City). For the reasons that follow, we reverse and remand.

Bornstein was employed as the City‟s Health Officer for most of the time period between 1994 and 2008. As of 2008, Bornstein also served as Health Officer for the Borough of South Connellsville (South Connellsville), the Borough of Dunbar (Dunbar), and the City of Monongahela (Monongahela).*fn2

In her capacity as the City‟s Health Officer, Bornstein reported to David McIntire (McIntire), the City‟s Director of Public Safety and Health.*fn3 On September 25, 2006, McIntire issued Bornstein a written warning, informing Bornstein that an unidentified resident of the Connellsville area had made allegations that she was working for other municipalities during her normal City working hours. (R.R. at 216a.) McIntire advised Bornstein that she was to conduct only City-related business between 9:00 a.m. and 5:00 p.m., Monday through Friday. McIntire further advised Bornstein that she was not to use the City‟s "telephones, computers, copy machine, fax machine, etc." for business not related to the City. (Id.) Finally, McIntire advised Bornstein that she could face dismissal if she continued to perform work for other municipalities using City time and resources.

Thereafter, the State Ethics Commission conducted an investigation of Bornstein on allegations that she had performed duties for South Connellsville and Dunbar during the same hours that she was being paid by the City, and that she had performed said duties using the City‟s office, equipment, materials, and supplies.*fn4

Bornstein was also accused of failing to file required statements of financial interests. On February 15, 2008, Bornstein entered into a consent agreement and a stipulation of findings with the State Ethics Commission‟s Investigative Division, in which Bornstein stipulated to the above accusations. (Id. at 265a-92a.) The consent agreement provided, however:

5. The Investigative Division will recommend that the State Ethics Commission take no further action in this matter; and make no specific recommendations to any law enforcement or other authority to take action in this matter. Such, however, does not prohibit the Commission from . . . cooperating with any other authority who may so choose to review this matter further.

6. Bornstein‟s acceptance and execution of this Consent Agreement is solely for the purpose of resolving the matter currently pending before the Pennsylvania State Ethics Commission and is in no way related to any other proceedings or matters that may be currently ongoing or which may be initiated in the future.

Bornstein, by accepting and executing this Consent Agreement, does not admit the legal conclusions herein, but she accepts the legal consequences set forth in this Consent Agreement. (Id. at 266a.) All of the improper activities detailed in the consent agreement and stipulation of findings, save one, occurred prior to McIntire‟s September 25, 2006 written warning.*fn5

Based on the consent agreement, the State Ethics Commission issued a final adjudication and order on April 28, 2008. (Id. at 225a-53a.) The State Ethics Commission concluded that Bornstein violated Section 1103(a) of the Ethics Act, 65 Pa. C.S. § 1103(a), "when she utilized her office, including equipment and materials, in support of her part-time positions as Health Code Officer for [South Connellsville] and [Dunbar]" and "when she performed duties related to her part-time positions with South Connellsville and Dunbar during the same hours for which she was being compensated as an employee of the City." (Id. at 253a.) The State Ethics Commission also concluded that Bornstein violated Section 1104(a) of the Ethics Act, 65 Pa. C.S. § 1104(a), "when she failed to file Statements of Financial Interests for the 2001, 2002, 2003, 2004, and 2005 calendar years in her public positions with South Connellsville and Dunbar and . . . for the 2002, 2003, 2004, and 2005 calendar years in her public position with the City." (Id.) As a result of her violations of the Ethics Act, the State Ethics Commission ordered Bornstein to pay $2,928.37, per the consent agreement, and directed Bornstein to file statements of financial interests for the years that she had failed to do so. (Id. at 254a.) The State Ethics Commission neither initiated nor recommended the initiation of any criminal charges. Bornstein did not appeal.

In June 2008, the City‟s Mayor advised McIntire of the State Ethics Commission‟s April 28, 2008 final adjudication and order. On the advice of the City‟s Solicitor, McIntire issued a letter on July 9, 2008, discharging Bornstein from her position as the City‟s Health Officer. (Id. at 9a.) Subsequently, the City‟s Solicitor informed McIntire that he discharged Bornstein without following the proper procedures, prompting McIntire to issue a second letter on July 11, 2008, which provided:

Be advised that your discharge as Health Officer for the City of Connellsville has been suspended pending a hearing before the City Council pursuant to Section 4408 of the Third Class City Code [(Code)].*fn6 You will be notified in writing of the date and time of the hearing. You are to resume your duties on Monday July, 14, 2007 following your requested three day vacation leave. (R.R. at 10a.)

On Friday, August 15, 2008, at approximately 4:15 p.m., Bornstein received a letter from McIntire, dated August 14, 2008, informing her that the hearing referenced in the July 11, 2008 letter had been scheduled for Wednesday, August 20, 2008. That letter provided:

As a result of the Pennsylvania Ethics Commission adjudication as set forth in its Order Number 1463 dated April 28, 2008, which order has not been appealed, a hearing pursuant to Section 4808 of the Third Class City Code to determine what disciplinary action, if any, the City Council sitting as a Civil Service Board, shall take against you in your capacity as health officer. The hearing is set for Wednesday, August 20, 2008, at 7:00 P.M. at the City Council Chambers in City Hall, 110 North Arch Street, Connellsville, PA. You may be represented by an attorney of your choice should you so desire. (Id. at 11a.)

As scheduled, Bornstein appeared at a hearing on August 20, 2008.*fn7

Contrary to the August 14, 2008 letter, however, the City Council did not sit as a Civil Service Board. Instead, Bornstein appeared before the City Council, which consisted of four members, including McIntire, and the City‟s Mayor. The City‟s Solicitor was not present at the hearing, and independent counsel acted as hearing officer. (Id. at 152a, 198a-99a.) Bornstein, who was not represented by counsel, testified on her own behalf. Bornstein did not request a continuance. (Id. at 157a, 169a.) After hearing testimony, the City Council convened an executive session closed to the public. The City Council emerged shortly thereafter and announced that they had voted to terminate Bornstein‟s employment as the City‟s Health Officer by a count of three-to-two. (Id. at 136a, 201a.) McIntire and the City‟s Mayor were two of the three votes in favor of termination. (Id.)

By letter dated August 21, 2008, McIntire advised Bornstein that she was being discharged from her position as the City‟s Health Officer as a result of the August 20, 2008 hearing before the City Council. (Id. at 12a.) McIntire further advised Bornstein that, pursuant to Section 4408 of the Code, she had a right to appeal the City Council‟s decision to the trial court within 30 days. (Id.)

Concerned with the legality of Bornstein‟s discharge, the City Council passed Resolution No. 10-20-08 at a duly advertised public meeting held on October 16, 2008, formally ratifying its decision to terminate Bornstein. Resolution No. 10-20-08 provides:

To ratify the discharge of Rita Bornstein from the positions of Health Officer, Code Officer and Zoning Officer, and to rectify any procedural errors, including any failure to comply with the provisions of the Sunshine Law, related to those actions. Rita Bornstein is discharged from the Health Officer position effective August 20, 2008, from the Code Officer position effective July 9, 2008, and from the Zoning Officer position effective October 16, 2008. The employment dismissal is a result of the Pennsylvanian [sic] Ethics Commission adjudication as set forth in Order Number 1463 dated April 28, 2008. (Id. at 261a.) By letter dated October 20, 2008, the City‟s Clerk, Antoinette Tesauro (Tesauro), advised Bornstein of the passage of Resolution No. 10-20-08. (Id. at 263a.)

On September 19, 2008, Bornstein appealed the City Council‟s decision to the trial court. Bornstein argued, inter alia, that the City Council violated her procedural due process rights. Specifically, Bornstein contended that notice of the August 20, 2008 hearing was inadequate because the August 14, 2008 letter did not state with adequate specificity the charges that the City Council would be considering, did not give Bornstein sufficient time to secure legal counsel and prepare an adequate defense, and erroneously provided that the City Council would be sitting as a Civil Service Board. Bornstein further argued that McIntire‟s participation at the August 20, 2008 hearing constituted an unlawful commingling of prosecutorial and adjudicatory functions. The trial court held a de novo hearing on March 30, 2010, where the parties presented, inter alia, the testimony of Bornstein, McIntire, Tesauro, and City Councilman Charles Matthews (Matthews).*fn8

By order dated January 19, 2011, the trial court affirmed the City Council‟s termination of Bornstein, concluding that there was substantial evidence to support the City Council‟s exercise of discretion based on the State Ethics Commission‟s April 28, 2008 final adjudication and order. As for Bornstein‟s due process arguments, the trial court determined that there was no unlawful commingling of prosecutorial and adjudicatory functions because the City Council based its decision to terminate Bornstein entirely on the State Ethics Commission‟s April 28, 2008 final adjudication and order, and neither McIntire, nor any other member of the City Council, participated in the State Ethics Commission‟s investigation. The trial court further determined that Bornstein had adequate notice of the charges that the City Council would be considering at the August 20, 2008 hearing because the August 14, 2008 letter specifically referred to the State Ethics Commission‟s April 28, 2008 final adjudication and order. Finally, with regard to the timing of the notice, the trial court determined:

Counsel for Bornstein has submitted no authority that provides for any specific length of time that notice must be provided in advance of a hearing. Bornstein had several days advance notice of the specific hearing date, had several months of notice as to the issues that would be addressed at the hearing, did nothing to secure counsel in those intervening months, appeared at the hearing herself, and did not request a continuance to secure counsel or for any other purpose. She had actual notice and an opportunity to present evidence on her own behalf at the hearing. She did argue her cause, although she did not contradict the State Ethics Commission Adjudication that was the primary evidence against her.

Because the alleged violation of "procedural due process" is not more specifically set forth, this Court is unable to address the alleged error any further. (Trial ...


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