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Robert N. Barbour v. Municipal Police Officers' Education and Training Commission

July 5, 2012

ROBERT N. BARBOUR, PETITIONER
v.
MUNICIPAL POLICE OFFICERS' EDUCATION AND TRAINING COMMISSION, RESPONDENT BRIAN BOYD, JR., PETITIONER
v.
MUNICIPAL POLICE OFFICERS' EDUCATION AND TRAINING COMMISSION, RESPONDENT IAN C. CLEGHORN, PETITIONER
v.
MUNICIPAL POLICE OFFICERS' EDUCATION AND TRAINING COMMISSION, RESPONDENT KENNETH F. COLLINS, PETITIONER
v.
MUNICIPAL POLICE OFFICERS' EDUCATION AND TRAINING COMMISSION, RESPONDENT KEVIN M. COSENTINO, PETITIONER
v.
MUNICIPAL POLICE OFFICERS' EDUCATION AND TRAINING COMMISSION, RESPONDENT MICHAEL CURRAN, PETITIONER
v.
MUNICIPAL POLICE OFFICERS' EDUCATION AND TRAINING COMMISSION, RESPONDENT DAVID M. CUDDHY, PETITIONER
v.
MUNICIPAL POLICE OFFICERS' EDUCATION AND TRAINING COMMISSION, RESPONDENT DANIEL DINARDO, PETITIONER
v.
MUNICIPAL POLICE OFFICERS' EDUCATION AND TRAINING COMMISSION, RESPONDENT FRANCIS S. ELY, JR., PETITIONER
v.
MUNICIPAL POLICE OFFICERS' EDUCATION AND TRAINING COMMISSION, RESPONDENT RICHARD FULLER, PETITIONER
v.
MUNICIPAL POLICE OFFICERS' EDUCATION AND TRAINING COMMISSION, RESPONDENT MARK J. HEINE, PETITIONER
v.
MUNICIPAL POLICE OFFICERS' EDUCATION AND TRAINING COMMISSION, RESPONDENT MICHAEL K. IREY, PETITIONER
v.
MUNICIPAL POLICE OFFICERS' EDUCATION AND TRAINING COMMISSION, RESPONDENT



The opinion of the court was delivered by: Bonnie Brigance Leadbetter, Judge

CASES ARE NOT CONSOLIDATED

Argued: March 12, 2012

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge

HONORABLE P. KEVIN BROBSON, Judge HONORABLE J. WESLEY OLER, JR., Senior Judge

OPINION BY JUDGE LEADBETTER

In these twelve related appeals, police officers employed by several municipalities in Delaware County (collectively, Petitioners) challenge the final orders of the Municipal Police Officers' Education and Training Commission (Commission) revoking their police officers' certifications for cheating on the annual mandatory in-service training course examinations. Petitioners argue that the Commission exceeded its authority under Section 2164 of the Act, commonly referred to as the Municipal Police Education and Training Act, as amended, 53 Pa. C.S. § 2164, in adopting the regulations which permit the Commission to revoke a police officer's certification for cheating. Petitioners further argue that the Commission's decisions were arbitrary and capricious and constituted an abuse of its discretion. We reject Petitioners' arguments and affirm the Commission's orders.*fn1

I.

The Commission*fn2 is responsible for establishing a municipal police officers' education and training program, which is administered by the Pennsylvania State Police. Section 2161(a) of the Act, 53 Pa. C.S. § 2161(a). The Commission's powers and duties, enumerated by the Act, include the following:

(1) To establish and administer the minimum courses of study for basic and in-service training for police officers and to revoke an officer's certification when an officer fails to comply with the basic and in-service training requirements[*fn3 ] or is convicted of a criminal offense or the commission determines that the officer is physically or mentally unfit to perform the duties of his office.

.. (6) To require every police officer to attend a minimum number of hours of in-service training as provided for by regulation ..

.. (14) To make such rules and regulations and to perform such other duties as may be reasonably necessary or appropriate to implement the education and training program for police officers.

Section 2164(1), (6) and (14) of the Act (emphasis and footnote added).

The regulations promulgated by the Commission require municipal police officers to comply with the annual mandatory in-service training requirements: (1) "[c]ontinuous" in-service requirements, consisting of annual qualifications on firearms and other weapons and maintenance of a first aid and CPR certification, and (2) "[a]cademic" in-service requirements, consisting of at least 12 hours of annual academic training requirements. 37 Pa. Code § 203.52(b)(1) and (2). Successful completion of the annual academic in-service requirements is determined only by examinations provided by the Commission and administered by course instructors at the end of each training course. 37 Pa. Code § 203.52(c)(6). A police officer who fails to receive a minimum passing score determined by the Commission is given an opportunity to review the course and take an oral reexamination with different questions. 37 Pa. Code § 203.52(c)(7). An individual who is currently employed as a police officer and fails both the initial examination and the reexamination is permitted to participate in another course offering and examinations. Id.

The Commission also adopted a policy on cheating in 37 Pa. Code § 203.54(a), which provides:

The contents of all examinations are confidential. An individual may not cheat or tamper in any manner with an official examination either conducted or sponsored by the Commission by obtaining, furnishing, accepting, or attempting to obtain, furnish or accept answers or questions to examinations, or portions thereof. Individuals may not copy, photograph or otherwise remove examination contents; nor may they use any misrepresentation or dishonest method while preparing, administering or participating in examinations. Unauthorized possession of a test, examination, quiz or . questions, answers or answer keys relating to a test, examination or quiz shall constitute cheating. An individual violating this section shall be barred from further participation in any Commission-required training and ineligible for certification. Individuals will receive notice and have an opportunity to be heard under Subchapter G (relating to notice and hearings). [Emphasis added.]

The Commission "maintains the right to revoke certification after notice and an opportunity to be heard" for, inter alia, " [f]ailure to successfully complete annual mandatory in-service training" and "[c]heating." 37 Pa. Code § 203.14(a)(4) and (9).

II.

In separate letters dated June 30, 2009, the Commission's executive director, John M. Gallaher, informed Petitioners and the three other officers involved in the related appeals, Timothy Hannigan, Jonathan Freeman and Sean P. Gallagher, that he was proposing to revoke their police officers' certifications for cause and that they had a right to request a hearing within 15 days. Gallaher stated that he possessed facts which led him to believe that they (1) failed to successfully complete the 2009 mandatory academic in-service training requirements and (2) cheated during the academic training course examinations by possessing and/or furnishing answers to the examinations. The Commission thereafter appointed a hearing officer who held hearings on the proposed revocations on November 2, 4 and 12 and December 4 and 10, 2009. After the hearings, the hearing officer granted the Commission's motion to adopt a master record, consisting of the testimony of the Commission's witnesses presented at the November 2, 2009 hearing for Petitioner Irey and its exhibits M-1 through M-31, which would be considered in all of the 15 related cases. The hearing officer also permitted the Commission to supplement the record to include copies of Gallaher's June 30, 2009 letters (Exhibits M-32 through M-46).

The evidence presented by the Commission reveals the following circumstances leading to the cheating allegations against Petitioners. The Commission prepares three versions of examinations for each academic in-service training course: (1) Test 1, also referred to and interchangeable with Test A, to be administered following each training course; (2) Test 2 or Test B, a retest for officers who fail Test 1; and (3) Test 3 or Test C, to be administered to officers who fail both Test 1 and Test 2 and must re-take the course. Before scheduled examinations, the Commission sends twenty-one police academies a compact disc containing three versions of tests and answer keys. The police academy directors then reproduce hard copies of the tests and answer keys from the compact disc. Each test consists of ten multiple-choice questions with a possible answer of A, B, C or D for each question. Jamie Vaughn, an office assistant at the police academy at the Delaware County Community College (Delaware County police academy), testified that she usually labeled each test as Test 1, 2 and 3 or Test A, B and C, depending on how the Commission labeled it, inserted page numbers on top of each test page and gave course instructors approximately 35 copies of Test 1 and 10 copies of Test 2 for each training course examination.

Before administering an examination, a course instructor must inform the class of the Commission's cheating policy as stated in 37 Pa. Code § 203.54(a).

37 Pa. Code § 203.54(c). The cheating policy is also printed verbatim on top of the answer sheet above the officer's signature line. The officers sign and print their names and fill in the name of a police academy and a test version, as directed by the instructors: Test 1 or Test A for an initial test and Test 2 or Test B for a retest. The officers also fill in the class ID, the session ID, the course title and the course/test date. After completion of the tests, the officers turn in the tests and the answer sheets separately. The tests used by the officers cannot be identified because they are not attached to the answer sheets and do not contain any information linking the tests to test takers.

In 2009, Petitioners were required to take four three-hour annual mandatory academic in-service training courses. The Commission shipped the training course test materials to the police academies by UPS in late December 2008 for examinations scheduled for February 25 and 26, 2009. On February 5, 2009, Officer Gallagher of the Oxford Borough police department, the petitioner in No. 642 C.D. 2011, sent Officers Brian Dever and Joseph Devlin of the same police department an e-mail with the subject line, "FW: Answers for Act 180 if you need them," and listing answers to the four 2009 academic training course examinations. Exhibits M-12 and M-13; Master Reproduced Record (R.R.) at 159a and 160a. The e-mail did not indicate whether those answers were for Test 1 or Test 2. Dever and Devlin forwarded Gallagher's e-mail to their police chief, who in turn reported the e-mail to the director of the Delaware County police academy, William Davis. Davis then notified the Commission's administrative officer, Beverly Young, that the Test 1 answers had been disseminated via an e-mail.

On February 12, 2009, Young and the Commission's director of training, Rudy M. Grubesky, instructed police officers' education training specialists, Timothy Ebersole and Kimberly Shaw, to investigate the cheating allegations. On February 24, 2009, Grubesky sent an e-mail to the police academy directors, stating:

Due to a recent cheating incident, the examinations for Test 1 (Test A) for all four 2009 Mandatory In-Service Training Program courses have been compromised. Please discontinue using Test 1 (A) as soon as practicable. I know there may be some logistical issues and hardship in making this change, but we need to ensure the integrity of the examinations. Please keep monitoring test security at your school. The investigation is ongoing.

Exhibit M-4; R.R. at 150a (emphasis in original). Before receiving Grubesky's e-mail, the Delaware County police academy director had already instructed his secretary, Vaughn, to destroy the Test 1 materials and give the course instructors Test 2 and Test 3 versions instead. Vaughn shredded all of the Test 1 materials, as instructed.

On February 25, 2009, the course instructor, John W. Ryan, was scheduled to teach two three-hour courses at the Delaware County police academy: Legal Updates in the morning and Officer Safety Awareness in the afternoon. His usual procedure was to administer an examination for the morning class before lunch. On that date, however, Ryan realized that he did not have enough test materials for the Legal Updates course. Because he could not quickly obtain additional test materials, he released the officers for a lunch break, stating that they would take the Legal Updates test after lunch. In handing out the Legal Updates tests to the class after lunch, he noticed that they were Test 2 or Test B versions. During the subsequent Officer Safety Awareness test, someone in the class asked him to verify the test number. After responding that it was Test 2 or Test B, he checked to make sure that he was handing out Test 2 versions. In the classroom, only he had a copy of the Test 1 version for the Officer Safety Awareness course, which he had used to take the test himself to prepare for the class. In the eighteen years that he had been a course instructor, it was the first time that he gave the class Test 2 versions for an initial test.

In grading the Office Safety Awareness test, Ryan realized that he had never had so many officers failing the test. He checked again to make sure that all of the test booklets were the same. He took the Officer Safety Awareness tests and answer sheets home and went over the officers' answers again. He made slash marks on correct answers whenever the officers placed wrong answers on the answer sheet. After reviewing the answers of the officers who failed to receive a passing grade of 70%, he learned that they seemed to have the same wrong answers on the test and that most of them would have received 90% or 100% on the Test 1 version. The next day, he informed the Delaware County police academy director of his findings and administered the Test 3 versions to the officers who failed the first test. The Commission's investigators, Ebersole and Shaw, thereafter analyzed Petitioners' answers by comparing them with the answers disseminated before the examinations.

III.

In the separate proposed decisions issued on November 2, 2010, the hearing officer reviewed the evidence presented by the Commission and each Petitioner regarding the cheating allegations and made her recommendations to the Commission.

1. Barbour.

Barbour was employed by the Borough of Darby as a canine officer. The investigators, Ebersole and Shaw, determined that the Delaware County police academy used the Test 2 versions of the Officer Safety Awareness test on February 25, 2009. Although Barbour scored a passing score of 70% on the Legal Update test and also passed the Officer Safety Awareness test, the investigators decided to interview him because they noticed on his answer sheet eight suspicious erasure marks or tick marks where correct answers to the compromised Test 1 version would have been. During the interview, Barbour admitted that before the Legal Update test, he received a text-message containing the answers to all four course examinations from Officer Hannigan of the Borough of Darby police department, the petitioner in No. 612 C.D. 2011. Barbour initially claimed that he deleted Hannigan's text-message and did not place any marks on his answer sheet. After a private conversation with his police chief who attended the interview, he admitted that he wrote down the answers contained in Hannigan's text-message on the note pad, placed marks on those answers on the answer sheet, and then erased those marks after reading the questions.

At the hearing, Barbour testified that he deleted Hannigan's text-message, believing that it was a practical joke. He also denied making any marks on his answer sheet. When asked why he changed his story during the interview with the investigators, he replied: "[I]t basically came down to, you know, respect my chief. He didn't believe me. . [H]e almost made me feel like, listen tell them what they want to hear and we'll work this out and it will be worked out. And I gave in to that. It was the easy out. That's what I did." November 4, 2009 Hearing, Notes of Testimony (N.T.) at 49; R.R. at 221a. Lieutenant Richard Gibney of the Borough of Darby police department testified that Barbour told him that Barbour admitted cheating to the investigators because of the police chief's threat. The police chief testified that he privately talked to Barbour and was "in [Barbour's] face" because he felt that Barbour was not "forthright" in answering the investigators' questions. Id. at 32; R.R. at 217a. The police chief further testified that he had no problem in keeping Barbour in his police department and that losing Barbour and Petitioner Cuddhy would cause a major problem to his department.

Accepting the Commission's evidence as credible and rejecting Barbour's testimony, the hearing officer found that the police chief simply told Barbour to tell the truth and did not coerce him to confess what he did not do. The hearing officer found that Barbour had access to the Test 1 answers, marked them on the answer sheet and then erased them. The hearing officer concluded that the Commission met the burden of proving cause to revoke Barbour's certification for cheating. She noted that 37 Pa. Code §203.54(a) was broadly written and did not provide for any exception to a revocation based on an officer's prior employment record or extenuating or mitigating circumstances. She stated that if the Commission had discretion to do so, Barbour's performance as a police officer could be considered in determining the possibility of a future recertification.

2. Boyd.

Boyd was a patrol officer for Upland Borough. The analysis of Boyd's answer sheet showed that he scored 40% on the Officer Safety Awareness test but would have received 90% on the Test 1 version. Exhibits M-2 and M-28; R.R. at 130a and 175a. Boyd and five other Petitioners (Curran, DiNardo, Ely, Fuller and Irey) had identical answers to the Officer Safety Awareness test with the same wrong answer to Question #9 of the Test 1 version. The investigators determined that Boyd violated the cheating policy by possessing the test answers. He agreed to submit to a polygraph test, but the Commission did not arrange one.

At the hearing, Boyd denied having access to the test answers or otherwise cheating on the test. He testified that he wrote A for the version of the Officer Safety Awareness test at the instructor's direction and placed on the answer sheet what he believed to be correct answers. He agreed that his answers were identical to the answers of Petitioner DiNardo, who sat next to him during the test and admitted having access to the test answers. The Borough's police chief and mayor and the Borough council president testified that they did not question Boyd's integrity, honesty and professionalism and that losing Boyd, Curran and DiNardo from the police department with only four full-time police officers would create a public safety issue. They conceded that neighboring municipalities would provide support for the Borough, if necessary, under the mutual aid agreement.

The hearing officer found the testimony of the Commission's witnesses credible and rejected Boyd's assertion that he and other officers were given the Test 1 version of the test. The hearing officer stated that the credibility of the course instructor's testimony was not undermined by his admission that he made a mistake in evaluating the answers of Irey, who had the same answers as Boyd, as 100%, not 90%, for the Test 1 version. She suggested that the Commission consider the testimony of Boyd's witnesses regarding his performance as a police officer and the hardship that the Borough would experience upon Boyd's decertification for a possible future recertification, if it had discretion to do so.

3. Cleghorn.

Cleghorn was employed by the Borough of Ridley Park as a patrol officer. Ebersole and Shaw interviewed him because he failed the Officer's Safety Awareness test and was on the distribution list of the e-mail that disseminated the test answers. Cleghorn provided Ebersole a copy of the e-mail containing the test answers, which Officer Freeman of the Trainer Borough police department, the petitioner in No. 641 C.D. 2011, forwarded to him. Exhibit M-24; R.R. at 171a. The e-mail forwarded by Freeman to Cleghorn and other officers was from blaze52@comcast.net, identified by Freeman at the hearing as Officer Richard Griffin's e-mail address. During the investigation, Cleghorn initially denied but later admitted using the answers contained in Freeman's e-mail during the test. The analysis of his answers to the Officer Safety Awareness test showed that he scored 60% on the Test 2 version but would have received a passing score of 70% on the compromised Test 1 version. Exhibits M-2 and M-25; R.R. at 131a and 172a.

Cleghorn testified that he thought that Freeman's e-mail was a joke and that the e-mail ended up in his computer's trash bin when he attempted to delete it. He admitted that he had the test answers contained in Freeman's e-mail in his "workbook" during the test and compared them to see if they were actually valid answers. November 12, 2009 Hearing, N.T. at 31; R.R. at 311a. He stated that possessing Freeman's e-mail during the test was "the stupidest thing" he had done in his career as a police officer. Id. at 38; R.R. at 318a. The Borough's police chief testified that upon Cleghorn's decertification, his police department with eight full-time officers would have either only one officer working in one shift or have to pay another officer overtime pay. The police chief did not question Cleghorn's integrity and honesty.

Accepting the testimony of the Commission's witnesses as credible and rejecting Cleghorn's claim that he took the Test 1 version, the hearing officer concluded that his admitted possession and use of the answers in Freeman's e-mail constituted cheating. She stated that the Commission may elect to consider Cleghorn's performance as a police officer for a possible future recertification, if it had discretion to do so.

4. Collins.

Collins was a part-time police officer for the Borough of Darby and the Borough of Millbourne. He scored a failing grade of 40% on the Test 2 version of the Office Safety Awareness test but would have received 100% on the Test 1 version. Exhibits M-2 and M-21; R.R. at 132a and 168a. During the interview with the investigators, Collins denied that he possessed the answers before or during the test or otherwise cheated on the test. At the hearing, Collins again denied cheating and testified that he believed he was given the Test 1 version of the Officer Safety Awareness test. The Boroughs' police chiefs testified regarding Collins's integrity and honesty and the hardship that the Boroughs would experience upon his decertification.

The hearing officer accepted the Commission's evidence as credible and rejected Collins's claim that he took the Test 1 version of the Office Safety Awareness test. She concluded that the Commission established that the Test 2 version was administered to Collins and that he possessed the answers to the Test 1 version and used them during the test. She suggested the Commission's consideration of his performance as a police officer for a possible recertification, if it had discretion to do so.

5. Cosentino.

Cosentino was a full-time patrol officer for Upper Darby Township. There was no direct evidence that Cosentino received an e-mail or a text message containing the test answers. He received a failing grade of 40% on the Test 2 version of Officer Safety Awareness test but would have scored 100% on the Test 1 version. Exhibits M-2 and M-30; R.R. at 133a and 177a. His answers were identical to the answers of Collins who sat next to him during the test. He denied cheating to the investigators. At the hearing, he again denied having access to the test answers or otherwise cheating on the test. Cosentino's supervisor testified that he had no reason to seek Cosentino's removal from the police force despite the cheating allegations against him. The hearing officer rejected Cosentino's assertion that he was inadvertently given the Test 1 version. She accepted the course instructor's testimony ...


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